ALH. GARBA HARUNA & ORS v. ALH. HARUNA HARUNA MAI-JEGA
(2018)LCN/12257(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/S/83S/2017
RATIO
EVIDENCE: BURDEN OF PROOF UNDER THE ISLAMIC LAW
“It has been settled by an avalanche of decided judicial authorities that the burden of proof is always on he who asserts to establish his claim. Reference was made to the cases of Kande Mudi V. Jofe Bafillace (2006) 3 SLR (Pt. I) Pg. 37 at 39 and Rada V. Malunfashi (1993) 7 NWLR (Pt. 303) Page 1 at 17, where the Apex Court, Per Wali JSC held thus. – ‘The general principles of Islamic Law relating to claim in civil matters in both movable and immovable property is that proof is complete by the evidence of two male unimpeachable witnesses or such one male and two female or more witnesses with Claimant’s oath in either case.'” PER HUSSEIN MUKHTAR, J.C.A.
EVIDENCE: WHETHER EVIDENTIAL BURDEN CARRIES EVIDENTIAL WEIGHT
“The law is that an unsigned document carries no evidential weight. This Court per Ogbuinya, JCA, held in Octs Education Service Ltd. v. Padson Industries Ltd. & Anor (2012) 47 WBN Pg. 102 @ 108 thus.- “It is trite law that unsigned document commands no value in legal proceedings”. See also the cases of Omega Bank (Nig.) Plc. V. O. B. C. Ltd. (2005) S.C. (Pt. I) 49, UBN Plc V. Toyinbo (2009) 13, WRN, Pg. 143 @ 152 and Colito (Nig.) Ltd. V. Daibu (2010) 6 WRN Pg. 72 @ 81.” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. ALH. GARBA HARUNA
2. MUSLIM HARUNA
3. JUNAIDU HARUNA
4. ABDUSSALAM HARUNA Appellant(s)
AND
ALH. HARUNA HARUNA MAI-JEGA Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This appeal springs out from the judgment of the Kebbi State Shari’a Court of Appeal, Birnin Kebbi Division 1, delivered on the 28th day of February 2017. The Court below overturned the decision of the Upper Shari’a Court, Jega, Kebbi State.
The Appellants herein instituted this suit against the Respondent before the trial Court in Suit No. USC/JG/CV/48/2016, claiming that the farmland in dispute belongs to their late father (Alhaji Haruna III Sarkin Kabi Jega) who died in 2006, which farmland has been in possession of the Respondent. The Appellants prayed the Court to divide the said farmland among the heirs as the estate left by their deceased father. They listed the names of all the heirs. The Respondent denied the claim and claimed that the said farmland belongs to him alone as it was given to him as a gift by their deceased father since 1983. He further claimed that all the Appellants were aware of the said gift and he (the respondent) has been in possession and enjoying all possessory rights for about 30 years.
In line with the tenets of Islamic Law, the trial Court called upon the Respondent to present witnesses in support of his claim. The Respondent informed the Court that his witnesses are his step mothers and they were all summoned before the Court as witnesses but all testified that they don’t know about the alleged gift.
The respondent then tendered in evidence a document claimed to have written by the appellants? father, which the appellants challenged and denied same. The lower Court allowed the respondent to call witnesses acquainted with the handwriting and signature of the maker of the document tendered by the respondent (handwriting of their late father) and used such evidence to confirm the gift of the farmland to the respondent and set aside the judgment of the trial Court delivered on the 22nd day of November 2016, which dismissed the Appellant’s claim and ordered the distribution of the property to the heirs of the late Alhaji Haruna III Sarkin Kabi Jega and ordered that it should be divided among his heirs.
The appellants were aggrieved by the lower Court’s judgment and therefore appealed to this Court by filing the Notice of Appeal on 9th March 2017, on following five (5) grounds reproduced bereft of their particulars: –
1. The lower Court erred in law and thereby occasioned a serious miscarriage of justice when the learned Kadis quashed the decision of the trial Court and confirmed the purported gift of the farmland in dispute in favour of the Respondent.
2. The learned Kadis erred in law and thereby occasioned a serious miscarriage of justice when they held in their judgment that the contents of exhibits ‘C’ and ‘D’ alone suffices to establish that the farmland in dispute belongs to the Respondent.
3. The learned Kadis of the lower Court misdirected themselves when they failed to adhere to the principles of Islamic Law relating to claim of the property of a deceased person.
4. The lower Court erred in law and thereby occasioned a serious miscarriage of justice when the learned Kadis failed to properly evaluate the evidence led by the Respondent.
5. The decision of the lower Court is against the weight of evidence.
The Appellants submitted the following four issues for determination in this appeal: –
i. Whether based on the evidence adduced before the Court, the Respondent was able to establish his claim that the farmland in dispute was given to him as gift by his father. (Distilled from ground one of the Notice and grounds of Appeal)
ii. Whether the contents of exhibits ‘C’ and ‘D’ alone suffices to establish that the farmland in dispute belongs to the Respondent without making reference to the validity or otherwise of the contents of exhibit ‘A’. (Distilled from ground two of the Notice and grounds of Appeal)
iii. Whether the procedure adopted by the Lower Court in confirming title over the farmland in dispute to the Respondent is known to Islamic Law as regards to a claim over the property of a deceased person. (Distilled from ground three of the Notice and grounds of Appeal)
iv. Whether the Lower Court properly evaluated the evidence adduced by the Respondent in support of his claim. (Distilled from grounds four and five of the Notice and grounds of Appeal)
The Respondent adopted the same four issues raised by the appellant.
The learned counsel for the appellant A. A. Fingilla, Esq argued issues 1 and 2 together. The treatment of the 1st and 2nd issues will also effectively dispose of issue four. The said three issues are reproduced thus:
1. Whether based on the evidence adduced before the Court the Respondent was able to establish his claim that the farmland in dispute was given to him as gift by his father.
2. Whether the contents of exhibits C’ and ‘D alone suffices to establish that the farmland in dispute belongs to the Respondent without making reference to the validity or otherwise of the contents of exhibit A 3. Whether the Lower Court properly evaluated the evidence adduced by the Respondent in support of his claim.
It was submitted for the appellant that Islamic Law requires that he who asserts must prove his assertion by calling evidence to establish his case. Reference was made to the book titled ‘Thamarud-Dani page 608, which provides thus:
…(Arabic Citation)
Further reference was also made to the cases of Muhammad A. Aidami V. Bukar Kusumi (2007) 3 SLR (Pt. iv) Pg. 208 at 213 and Mafolaku V. Alamu (1990) 1 L.R 60 @ 73.
It has been settled by an avalanche of decided judicial authorities that the burden of proof is always on he who asserts to establish his claim. Reference was made to the cases of Kande Mudi V. Jofe Bafillace (2006) 3 SLR (Pt. I) Pg. 37 at 39 and Rada V. Malunfashi (1993) 7 NWLR (Pt. 303) Page 1 at 17, where the Apex Court, Per Wali JSC held thus. –
“The general principles of Islamic Law relating to claim in civil matters in both movable and immovable property is that proof is complete by the evidence of two male unimpeachable witnesses or such one male and two female or more witnesses with Claimant’s oath in either case.”
Further refence was made to page 34 of Ihkamul Ahkam (short commentary on Tuhfatul Hukkam) and the case of AIh. Abdulkadir Sarkin Jushi Waje V. Alhaji Tukur Jushi (2006) 3 SLR (Pt. I) page 153 at 156-157.
The evidence as shown by the record of the lower Court shows that the Respondent’s claim to effect that the farmland in dispute was given to him as a gift by his deceased father prior to his demise was not supported by credible evidence. In an attempt to establish his claims, the Respondent tendered some documents before the trial Court which were admitted in evidence and marked as follows:-
– Exhibit ‘A’ (Letter of Gift),
– Exhibit ‘B1’ (Letter to Jega Local Government dated 23/06/1986),
– Exhibit ‘B2’ (Departmental Receipt No. 21920 dated 23/6/1986),
– Exhibit ‘CA’ (Certificate of Occupancy with Ref. No. 294 issued by Jega Local Government, dated 11/5/1987), – Exhibit ‘CB’ (Proposed Sketch Plan),
– Exhibit ‘CC’ (Departmental Receipt issued by Jega Local Government, dated 9/5/1989 No. 9076),
– Exhibit ‘O’ (Letter of Grant from Kebbi State Government dated 10/08/2007),
– Exhibit ‘E’ (Certificate of Occupancy No. JI/P/0679.
From the documents tendered by the Respondent before the trial Court, the most relevant is exhibit ‘A’, which reads thus:-
“After greetings, I wish to inform you that I inherited this farm from my father in 1925 excluding anyone. I gave it to him alone and he has been working in the farm for the past 6 years without any dispute from anybody”.
One wonders in what way exhibit ‘A’ supports the Respondent’s claim before the trial Court. It seems to be at large regarding the identity of the particular farmland in question. The content is vague and the said letter can be used for any farmland as it neither stated the location of the farmland to which it refers nor does it disclose the person in whose favour the alleged gift was made. Moreover, it was not signed by the maker thereof.
The law is that an unsigned document carries no evidential weight. This Court per Ogbuinya, JCA, held in Octs Education Service Ltd. v. Padson Industries Ltd. & Anor (2012) 47 WBN Pg. 102 @ 108 thus.-
“It is trite law that unsigned document commands no value in legal proceedings”.
See also the cases of Omega Bank (Nig.) Plc. V. O. B. C. Ltd. (2005) S.C. (Pt. I) 49, UBN Plc V. Toyinbo (2009) 13, WRN, Pg. 143 @ 152 and Colito (Nig.) Ltd. V. Daibu (2010) 6 WRN Pg. 72 @ 81.
From the above observations, the trial Court was right to have disregarded the contents of exhibit ‘A’ and all other subsequent documents issued or obtained by the Respondent connected with and defending on the merit of exhibit ‘A’. The lower Court was therefore wrong to have quashed the decision of the trial Court and confirmed title over the farmland in dispute to the Respondent on the strength of exhibit ‘A’ and other documents connected thereto. The mere production of a Certificate of Occupancy does not by itself entitle a party to a declaration of title. See the cases of Izevbigie v. Olubor (2005) AFWLR (Pt. 290) Pg. 1546 @ 1561 and Buremoh V. Akande (2000) NWLR (Pt. 690) Pg. 260 @ 286.
The Court was urged to resolve both issues in favour of the Appellants, allow the appeal, set aside the judgment of the Lower Court and affirm the decision of the trial Court.
The Learned Counsel for the respondent Bello Abubakar, Esq submitted that evaluation of evidence is the duty of the trial Court not the appellate Court, an exception to this general principle will only arise where it is shown to amount to a miscarriage of justice. See the case of AYORINDE VS AYORINDE (2011)17 WRN 74 at 83.
It was argued that the contents of exhibit A relates to purported gift of the piece of land in dispute that was allegedly given to the respondent by his father. And that he had worked and enjoyed possessory right over the land for 6 years prior to the the gift.
The Respondent’s counsel urged the Court to resolve the issue against the Appellants in favour of the respondent. It was further argued for the Respondent that the handwriting witnesses ought to have been called to testify. See the cases of ZIMIT VS MAHMOOD (1993) 1 NWLR (PT 26) P. 76 AT 91, PARAS. A-B, OGUNGBEMU VS ASAMU (1986) 3 NWLR (PT. 27) 161; BELLO VS RINGIM (1991) 7 NWLR (PT. 206) 688; M.I.A AND SONS LTD V. FHA (1991)8 NWLR (PT 209) 295.
It was submitted for the Respondent that where an appellate Court finds that a miscarriage of justice has been occasioned, in the proceedings of the trial Court, the appellate Court may direct for the calling of individual witnesses, evaluation of the evidence or doing the omitted procedure in the interest of justice and hence the lower Court was right when it breached the gap left by the trial Court in calling independent witnesses who are acquainted with the hand writing of the deceased father of the parties as used in exhibit A. See the cases of ALHAJI FATAl ADEKUNLE TERIBA VS AYOADE TIAMIYU ADEYEMO (2010) 4 S.C.N.J PG. 59 AT 61 AND 70, where the Supreme Court held thus:
where however, from the nature of the evidence, the evaluation would not entail demeanor and credibility of witnesses and simply entails the examination of oral and documentary therefrom, the appellate Court is in as vantage position as the trial Court to evaluate or re-evaluate same to see if the finding of the trial Court is supported by the evidence. Where the findings of the trial Court are not supported by the evidence then the appellate Court can Intervene and substitute therewith findings supported by the evidence.”
The Learned Counsel for the Respondent urged the Court to resolve issue 1 in favour of the Respondent and dismiss the appeal. The fact that exhibit A is not signed, it will serve no useful purpose to call handwriting experts to identify whose hand writing it was. It simply has no evidential value more to say that it could be a mere proposal, which falls short of committal by whoever might have written it. I resolve this issue in favour of the Appellant and against the Respondent.
ISSUES 3
3. Whether the procedure adopted by the Lower Court in confirming title over the farmland in dispute to the Respondent is known to Islamic Law as regards to a claim over the property of a deceased person.
Under Islamic Law, where a person claim ownership over a deceased’s property, the evidence of two credible witnesses do not suffice in establishing his claim, he must go further to subscribe to an oath of judgment (Yameenul Qadai) which the lower Court should consider. Such oath to a claimant over a deceased person’s property is aimed at protecting such property since the deceased will not be available to dispute or rebut the claim. It also proffered where the claim involves the property of a person who has been absent and his whereabout is unknown. In view of the fact the subject matter involves a claim affecting deceased person’s estate the respondent must be made to take the oath of ‘Yaminui Qadai’ (Oath of judgment) even after adducing credible evidence, which in the instant case has not been done.
In case of Hajiya Habiba a. Anor v. Hajiya Aishatu (unreported) Appeal No. CA/S/II7S/20I4, per Hussein Mukhtar JCA this Court held thus: –
“It is trite position of the law that when a person is claiming against the estate of a deceased person or a minor or against any person who is unavailable, the ordinary proof of providing two competent witnesses will not suffice. The law requires that the oath of ‘Yaminui Qadai should be taken by the claimant in addition to satisfying the ordinary method of proving the claim: ”
It was argued that the lower Court did not comply with the required procedure of the law which is fatal to the entire proceedings and judgment of the lower Court.
Under Islamic Law, where a person claims ownership over a deceased’s property, the evidence of two credible witnesses do not suffice to establishing the claim. He must go a mile further to subscribe to an oath of judgment (Yameenul Qada’i) which the Court below failed to consider.
The Court was urged to resolve this issue in favour of the appellant and allow the appeal.
It was argued for the Respondent that the general principle of Islamic Law is that a party who asserts must prove his case for him to be entitled to the judgment and that this should be done by providing 2 witnesses of unimpeachable character to support his claim, or where he has 1 witness will be administered on oath in addition. A party also who has a documentary evidence may prove his case by presenting such document in evidence.
It was submitted for the Respondent that it is not in every case that such Oath of judgment is necessary and that in a situation where a person claim a gift on the property of a deceased person and the heirs are adults the Oath is not necessary in so far as the person claiming gift prove the said gift. The Court was urged to resolve the issue in favour of the respondent.
The law is well settled that a claim to a deceased Muslim’s estate does not only require credible evidence. The normal credible evidence that would in cases other than a claim to a deceased property or that of a lost person who cannot come to Court to accept or deny the claim, only qualifies the claimant to taking the oath of Yaminul Qada’i (the oath of judgment). In the instant case the respondent did not adduce such evidence as would qualify him to taking the oath of Yaminul Qada’i. Thus, he did not reach the last hurdle of the requirement of evidence, much less crossing it. The issues 1, 2 3 and 4 cannot but be resolved against the Respondent and in favour of the Appellants.
The resolution of all the issues against the Respondent spells out the meritorious nature of this appeal. The appeal is successful and hereby allowed. The judgment of the lower Court (the Kebbi State Shari’a Court of Appeal, Birnin Kebbi Division) delivered on the 28th day of February 2017 is accordingly set aside and the judgment of the Upper Sharita Court, Jega, Kebbi State delivered in Suit No. USC/JC/CV/48/2016 is restored.
The appellants are entitled to costs assessed at Fifty Thousand Naira (N50,000.00) against the respondent.
AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, DR. Hussein Mukhtar, JCA. I am in agreement with his reasoning and conclusion that there is merit in this appeal. I adopt his reasoning in allowing the appeal and abide the consequential orders setting aside the judgment of the lower Court delivered on 28/2/17 and restoring the judgment of Upper Sharia Court Jega, Kebbi State in Suit No. USC/JG/CV/48/2016. I abide the consequential order on cost against the Respondent.
FREDERICK OZIAKPONO OHO, J.C.A.: I had opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious and hereby succeed. I abide by other consequential orders made in the lead judgment.
Appearances:
A. A. Fingilla, Esq.For Appellant(s)
Bello Abubakar, Esq.For Respondent(s)
