LawCare Nigeria

Nigeria Legal Information & Law Reports

ABOKI v. GOGALA (2022)

ABOKI v. GOGALA

(2022)LCN/15956(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, April 12, 2022

CA/A/909/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

AMINU ABOKI APPELANT(S)

And

ISAH AUTA GOGALA RESPONDENT(S)

 

RATIO

THE POSITION OF THE ISLAMIC LAW ON THE EFFECT OF FAILURE TO APPLY AL-LZAR AT THE APPROPRIATE TIME

 In the case of KABIRU MOHAMMED LIYAFA V HAJIYA KYAUTA, (2018) LPELR 45267, this Court in considering the effect of failure to apply Al-Izar at the appropriate time held as follows:-
“The main contention in the present case is that the trial Court had proceeded to enter judgment against the Appellant without considering Al-Izar. It is incumbent on the judge either at trial or on appeal that before judgment is finally delivered; the judge must give parties final opportunity to state and produce evidence in discharging the burden of proof. At the end of the party’s case the Court shall ask them whether they have anything more to say before the Court pronounces its judgment. This is what is called Al-Izar, something similar to allocutus in English criminal justice which must be conducted before an accused person is convicted.”
See MEDINAT & ANOR V ADAM (2013) 1 SQLR (pt. IV) page 152 at 162. In the unreported appeal no. CA/IC/142/86, IBRAHIM V ISYAKU & 2 ORS Wali, JCA (as he then was) said:
“…It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court.”
See also WANGARA V ISLAMIY ARKARA, (2006) 3 SCR (pt 1) 168.
PER SENCHI, J.C.A.

THE ESSENCE OF AN ADDRESS OF COUNSEL UNDER ISLAMIC LAW

The essence of an address of Counsel cannot be over-emphasised.
In OBODO V OLOMU (1987) 3 NWLR (pt. 59) 111 at 121 Belgore JSC (as he then was) stated that:
“Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases it is after address that one finds the law on the issues fought in favour of the evidence adduced.”
Nnamani JSC (as he then was) at page 124 of the same report stated that:-
“In normal course of things, the proceedings cannot be said to be complete until parties have addressed the Court.”
In SIGBENU V IMAFIDON, (2009) 13 NWLR (pt. 1158) 231, it was held that right of address is a fundamental requirement of fair trial. PER SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): The Appellant (as Plaintiff) at the trial Upper Sharia Court Kuta, Niger State complaint against the Respondent (as Defendant) on 2nd April, 2013 seeking the assistance of the trial Court to restrain the Defendant from trespassing into his farm which he inherited from his father, Aboki Zagi. In otherwords, the complaints of the Plaintiff at the trial Upper Sharia Court was for declaration of title to farmland situate at Anguwan Kawo Erena thereby seeking injunctive Orders against the Defendant. (See page 119 – 121 of the Record of Appeal). The trial Upper Sharia Court after satisfying itself that both parties are Muslims, on the 2nd September, 2013 the Plaintiff, through his Counsel commenced trial/hearing. On 21st September, 2013, the trial Upper Sharia Court was at the locus inquo and it ascertained the boundaries of the farmland in dispute. Four witnesses testified on behalf of the Plaintiff at the trial Upper Sharia Court. The four witnesses were cross-examined by the Defendant’s Counsel and later discharge.

​Then on 12th May, 2014, the Defendant opened his defence by calling four witnesses that gave evidence on his behalf.

The trial Upper Sharia Court after evaluating the evidence or testimonies of the witnesses for the Plaintiff and that of the Defendant, it rejected the evidence of DWs 1 & 2 called by the Defendant. (See pages 196 – 197 of the Record of Appeal). The trial upper Sharia Court in its judgment held:-
“So for that, this Court has given you Aminu the Plaintiff, the possession of this farm at Anguwan Kawo Evena, at the Shiroro Local Government Area, which is at Eastern part boundary with the Plaintiff at Southern part with Kaura, at Western part with the Defendant at Northern part with River.” (See page 197 of the Record of Appeal)

Aggrieved with the decision of the trial Upper Sharia Court, the Defendant (as Appellant) appealed to the High Court of Justice of Niger State vide a Notice of Appeal filed on 13th July, 2015. Additional grounds of appeal were filed on 20th January, 2016. On the 3rd November, 2017 the lower Court delivered its judgment and held as follows:-
“This appeal succeeds; the judgment of the lower Court is set aside for lack of fair hearing. It is hereby ordered that this case be sent for retrial to Upper Sharia Court Kuta before another judge than the one that heard it before.”
(See page 389 of the Record of Appeal)

The Respondent (now Appellant) dissatisfied with the judgment of the lower Court on the 24th November, 2017 filed a Notice of Appeal to this Court containing three grounds (without their particulars) as follows:-
(1) GROUND ONE
The learned Justices of the lower Court erred in law when they held that the trial Court did not observe the doctrine of Izar before judgment.
(2) GROUND TWO
The learned Justices of the lower Court erred in law when they held thus:-
“…though, we agree with the submissions of learned Counsel for the Respondent that the arguments of Appellant’s Counsel under this issue do not seem to flow from the said issue, in the circumstance however, there will be no need to embark on that line of reasoning since issue 2 (two) in the first place depends upon and is hinged on the success of issue 1 (one). Consequently having resolved issue 1 (one) in favour of the Appellant herein, it follows that issue 2 (two) would go the same way in that the judgment of the trial Court is bound by law, to be set aside for lack of fair hearing.
(3) GROUND THREE
The decision of the lower Court is against the weight of evidence.
(See pages 390-392 of the Record of Appeal).

The Record of Appeal was transmitted to this Court on 28th December, 2017. The Appellant filed the Appellant’s Brief of Argument on 17th January, 2018 predicated on his Notice of Appeal filed on 24th November, 2017. The Respondent’s Brief of Argument dated 6th February, 2018 was filed on 14th February, 2018. The Appellant’s Reply Brief was filed on 2nd March, 2018. The Appellant’s Brief of Argument is settled by E.K Philip Esq., and he raised two issues for determination of this appeal as follows:-
(1) Whether the learned Justices of the lower Court were right when they held that the doctrine of AL-Izar was not observed by the trial Court (Distilled from Ground 1 of the Notice of Appeal)
(2) Whether the learned Justices of the lower Court were right to have allowed the appeal based on arguments that are at variance to the issue for determination. (Distilled from ground 2 of the Notice of Appeal).

The Respondent’s Counsel, on the otherhand distilled two issues for determination (having withdrawn issue one and was struck out) as follows:-
(1) Whether the learned Justices of the lower Court were right when they held that the doctrine of Al-Izar was not observed by the trial Court.
(2) Whether the Justices of the lower Court were right to have held that the Respondent was denied fair hearing.

ARGUMENTS ON ISSUES
APPELLANT’S SUBMISSIONS
ISSUE ONE:
Whether the learned Justices of the lower Court were right when they held that the doctrine of Al-Izar was not observed by the trial Court.

At paragraphs 4.1-47 of the Appellant’s brief of argument, learned Counsel submitted on behalf of the Appellant to the effect that the holding of the lower Court at pages 385-386 that the trial Upper Sharia Court did not observed the doctrine of Al-Izar and setting aside the decision of the trial Court was wrong in law having regard to the record of proceedings of the trial Court that assembled witnesses and all were cross-examined by their respective Counsel and the Defendant closed his case and asked for an adjournment to address the Court. He referred the Court to page 170 of the Record of Appeal.

Learned Counsel submitted that Al-Izar was observed contrary to the holding of the lower Court and that the Respondent cannot at the same time complain on the same issue. He relied on the cases of DANTATA V MOHAMMED (2012) 8 NWLR (pt 1302) 366 and NEWSWATCH COMMS LTD V. ATTAH 170-171 paragraphs E.G.

Learned Counsel further submitted that the issue of Al-Izar was not before the trial Court and therefore the Respondent cannot competently raise it before the lower Court as a fresh issue on appeal without first seeking and obtaining the leave of Court to do so. Thus Counsel submitted that the ground upon which the issue was distilled therefrom and the arguments canvassed on the same and the holding of the lower Court collapsed in toto. He relied on the case of SHEKSE V PLANKSHAK, (2008) 15 NWLR (pt 1109) 105 at pages 118 -119 paragraphs H-A and page 121 paragraph D. He then posited that the cases cited by the lower Court in arriving at their decision on Al-Izar are not relevant because the parties in the cases represented and conducted their cases themselves without Counsel. Counsel to the Appellant submitted that Al-Izar is akin to allocutus in criminal law and he referred this Court to page 384 of the Record of Appeal and contended that the plea by Counsel on behalf of the Respondent cannot amount to miscarriage of justice. On the scope of Counsel’s authority vis-a-vis his client’s case, he cited the case of FESTUS L. ADEWUNMI V PLASTEX NIGERIA LIMITED, (1986) 3 NWLR (pt 32)767.

He urge this Court to resolve issue one in favour of the Appellant.

ISSUE TWO
Whether the learned Justices of the lower Court were right to have allowed the appeal based on arguments that are at variance to the issue for determination. (Culled from ground 2 of the Notice of Appeal).

At paragraphs 4.7 – 4.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that the Respondent at the lower Court filed five (5) grounds of appeal and distilled three issues for determination without indicating or relating the issues to which grounds of appeal it related to but rather left the lower Court and the Appellant’s Counsel to speculation and conjectures. He referred to pages 1, 9-10 and 343 of the Record of Appeal.

Learned Counsel contended that the Respondent instead of arguing issue two (2) of the ground of appeal canvassed argument relating to analysis or evaluation of the evidence and not fair hearing as the ground purports to suggest. He referred to pages 345 – 346 of the Record of Appeal. He posited that the Appellant raised this issue before the lower Court and urge the lower Court to discountenance the arguments thereto and strike out the ground on the basis of incompetence. He referred to pages 361-362 of the Record of Appeal and the decision of the lower Court at page 386 of the Record of Appeal. He also relied on the case of ZABUSKY V ISRAELI AIRCRAFT IND, (2008)2 NWLR (pt. 1070)109 at 131 paragraphs D-H.

Learned Counsel to the Appellant submitted that the lower Court erred in law for allowing ground 2 simply on the basis of the supposed success of the first ground. He referred to page 386 lines 10-11 of the Record of Appeal and contended that once the arguments are irrelevant to the issue, they must be rejected and both the ground and issue must be struck out. He relied on the case of ALIMS (NIG) LTD V U.B.A PLC (2013)6 NWLR (pt. 1351)613 at 634 – 635 paragraphs H-B.

In conclusion, learned Counsel to the Appellant urge me to resolve issue two (2) in favour of the Appellant and allow the appeal.

RESPONDENT’S SUBMISSIONS.
ISSUE TWO (2)
“Whether the learned justices of the lower Court were right when they held that the doctrine of Al-Izar was not observed by the trial Court (culled from ground 1).”

The learned Counsel to the Respondent submitted that the Appellant misconceived what Al-Izar connotes. At paragraphs 4.5 – 4.9 of the Respondent’s brief of argument learned Counsel submitted that the doctrine of Al-Izar is very fundamental and that failure to observe same will result to setting aside the entire proceedings no matter how conducted. According to the Respondent’s Counsel, Al-Izar is not only akin to allocutus in criminal trial, the effect of failure to observe same is grave as assuming jurisdiction by a Court where it has no jurisdiction. According to Counsel to the Respondent failure to observe Izar is as fatal as it amounts to legal infraction that a judgment must be set aside.

He further submitted that Al-Izar is not only applicable to where parties are not represented by Counsel but it is observed even where parties are represented by Counsel in Court and that even where Counsel filed final written address, Al-Izar is a mandatory procedure to be observed by the trial Court in the presence of two witnesses at the close of party’s case. He posited that Al-Izar is meant for the parties and not for their Counsel and it must be observed before judgment. He relied on chapter 7 Page 39-40 of Tuhfatul Hukkam, (A guide to Advocacy, Translation and commentary by Abbas Abdullahi Machika) and the cases of SA’ADATU MALA BABA V MAL BABA MOHAMMED, (2007)3 SLR (pt IV) 184 at 193 and MOHAMMED MAGAJI BAMI V ABDULLAHI RUGGA MAJO, (2006) 3 S.L.R (pt 111) 108 at 117.

In the instant case, learned Counsel to the Respondent contended that the trial Court failed to put the questions to the parties but went straight to deliver judgment, hence the infraction of Izar. He submitted the mandatory question that the trial Court must put across to the parties is thus:-
“Do you have any other thing to say or any excuse before the Court pronounces its judgment in this suit?”

He relied on Chapter 7 of Tuhfatul Hukkam, Guide to Advocates by Abbas Abdullahi Machika.

ISSUE THREE
Whether the learned Justices of the lower Court were right to have held that the Respondent was denied fair hearing.

At paragraphs 5.1 – 5.9 of the Respondent’s brief of argument, learned Counsel to the Respondent referred to page 120 of the Record of Appeal the claim of the Appellant before the trial Court which the Respondent denied and counter claim against the Appellant. (Page 122 of the Record of Appeal) with particular reference to paragraph 6. Then Counsel to the Respondent referred to page 195 of the Record of Appeal the judgment of the trial Court and then posited that the trial Court proceeded to adjudicate on the claim and counter claim without understanding of same.

Learned Counsel to the Respondent submitted that under Islamic law where there are conflicting claims, each party is treated as a Plaintiff in respect of his claim, that is to say, both parties become Muddai. In such circumstance, the Respondent’s Counsel contended that the trial Court is mandated under Islamic law to find out first who is in possession of the subject matter and then evidence or proof of ownership from the parties. He stated that it is important to identify the capacity of parties to the subject matter as to who is the Plaintiff and who is the Defendant. He relied on chapter two of Tuhfatul Hukkam pages 8 -10 and the unreported cases of ALHAJI JIDDUN V ABBA ABUNA & GONI ADAM, suit No. SC/135/1994 delivered on 6th October, 2000 and HAKIMI BOYI UMMARU V A’ISHA BAKOSHI, suit No. CA/K/83/5/94 etc. See also DANBABA V SALE, (2004) ALL FWLR (pt 226) 1915 and SHATACHE V BALARABE, (2002)10 NWLR (pt 775) 227 and MANDARA V AMIN, (2004) ALL FWLR (pt 239)1022. In the instant case, Counsel to the Respondent submitted that the Respondent was grossly denied fair hearing when the trial Court failed to take cognisance of his counter-claim hence the lower Court was right to have held that the Respondent was denied fair hearing.

On whether the Respondent’s argument were at variance with issues for determination at the lower Court, at paragraphs 5.11- 5.12 of the Respondent’s brief of argument, Counsel submitted on behalf of the Respondent that the trial Court is enjoined to do substantial Justice in determining issues before it and that the role of an appellate Court under Islamic law is different from the role of such Court under the common law as it relates to grounds of appeal, issues and arguments. According to learned Counsel to the Respondent is that the position under Islamic law that where parties at the appellate Court file grounds of appeal and raise issues from the grounds of appeal, the Court is not bound to consider any of such grounds and or issues if the Court believes that such issues will not lead to the proper determination of the case before it. He stated that the Court can formulate new issues and base its judgment on such issues as long as substantial justice is done. He relied on plethora of judicial decisions at paragraph 5.11 of his brief of argument to support his contention. In conclusion Counsel to the Respondent urged the Court to dismiss/strike out the preliminary objection and affirm the judgment of the lower Court and dismiss the appeal.

APPELLANT’S REPLY BRIEF OF ARGUMENT
At paragraphs 2.1 – 2.7 of pages 2 – 5 of the Appellant’s Reply Brief, the learned Counsel reacted to the Respondent’s preliminary objection to the effect that contrary to the arguments of the Respondent the issue of accurate identity of the land and the claim and counter-claim of the parties before the trial Court do not raise a question of jurisdiction at all. According to the Appellant’s Counsel, the Respondent raised such complaint arising from the proceeding of the trial Court and christened it as jurisdictional when in substance, it’s only an attempt to complain about such issue which this Court lacks powers to look into since it cannot directly sit on appeals over the decisions of the trial Court. He relied on Section 240 of the Constitution, 1999 (as amended) and the case of LADOJA V AJIMOBI (2016) 10 NWLR pt. 1519 page 82 at 144 paragraphs B-D, page 147 paragraphs G-H, 158 paragraphs C – D.

Learned Counsel submitted that the issue of the identity of the land and the way the Appellant and the Respondent’s claim and counter-claim are concluded before the trial Court cannot be competently raised as jurisdictional issue. According to Counsel it may be a point of defence leading to the dismissal of the suit but certainly do not rob the Court of jurisdiction to entertain the claim. He relied on the case of PDP v ABUBAKAR, (2007)2 NWLR (pt 1018) 303 at 315 paragraphs G-H.

Learned Counsel to the Appellant referred me to 121 -124 of the Record of Appeal and submitted and conceded that the trial Court at the mentioning of the case of the Appellant drew the attention of the Plaintiff (now appellant) on the necessity of accurately stating the boundaries of the land in order to know the exact land in issue. He stated that as submitted at paragraph 3.5 of the Respondent’s brief of argument, it means the trial judge understood the importance of such an exact description and wants to be certain before assuming or continue to assume jurisdiction in the matter. And on the 2nd September, 2013, the trial Court as earlier mentioned took a position as shown on pages 121-124 when the Court Ordered a visit to locus inquo.

Learned Counsel submitted that after the Defendant made his counter-claim on the subject matter, this necessitated the visit to the locus inqou and Counsel referred to the judgment of the trial Court at page 197 of the Record of Appeal. Thus, Appellant’s Counsel submitted that when the Respondent counter claimed the land at line 3 of page 122 of the Record of Appeal, the question of identity ceases to be in issue.
He relied on ANYANWU V UZOWUAKA, (2009) 13 NWLR (pt 1159)445 at 476 paragraphs D-E.

He also submitted that it is trite law that an appeal is not a new case but a continuation of the case before the trial Court and thus a party must be consistent in prosecuting his case both at the trial Court and the Court of Appeal and would therefore not be permitted to approbate and reprobate at the same time. Learned Counsel submitted that from the facts borne on record, for the Respondent to counter-claimed for the land, as for injunction appeal to the lower Court without raising this issue and to now raise the same before this Honourable Court is not only wrong in law but it also constitute an abuse of Court process more so that it is an issue of defence and not jurisdictional in nature. He relied on LADOJA V AJIMOBI (supra) page 103 ratio 13. He further submitted that from the totality of the records of appeal can it be said that the identity of the land is not known or uncertain or that the trial judge did not appreciate who between the Appellant and the Respondent ought to be Plaintiff and Respondent respectively? He relied on the cases of OGUNDELE v AGIRI, (2009) 18 NWLR (PT 1173) 219 at 240-241 paragraphs E.B. and FALEYE V DADA, (2016) 15 NWLR (pt1534) 80 ratio 11 and 89 -90 ratio 13.

In conclusion, Counsel to the Appellant submitted that the Respondent’s preliminary objection lacks merit and be dismissed. At paragraph 3.1 of the Appellant’s reply brief learned Counsel submitted that Al-Izar was rightly administered and relied and referred the Court to pages 170 – 171 of the Record of Appeal.

Further, in the Appellant’s reply brief, learned Counsel submitted that there is no ground of appeal before the Honourable Court or its particulars of error touching on claim or counter-claim and that the Respondent did not cross-appeal against the decision of the lower Court and raised a ground of appeal on counter-claim or claim or claim before the trial Court, his entire arguments at paragraphs 5.1 -5.10 of the brief of argument are at large and must be discountenanced with since there is no ground of appeal or particulars of errors before this Court capable of sustaining such arguments. He relied on plethora of judicial authorities in his reply brief to the effect that where there is no ground of appeal challenging the finding of the lower Court, that said finding is still valid and subsisting.

In conclusion, he urged the Court to resolve all the issue in favour of the Appellant, set aside the judgment of the lower Court and grant the reliefs sought in this appeal.

RESOLUTION OF ISSUES
Firstly, it would be recalled that on 19th January, 2022, the notice of preliminary objection dated 5th February, 2018 and filed on 14th February, 2018 was withdrawn by the Respondent’s Counsel and it was subsequently struck out. Further, arguments contained in the Respondent’s brief of argument at paragraphs 3.1 – 3.17 of pages 5.10 was also discountenanced. The Appellant’s reply brief in response to the notice of preliminary objection contained at paragraphs 2.0 – 2.7 of pages 2 – 5 of the Appellant is also discountenanced.

Thus, this appeal will be determined based on the two issues formulated by the Appellant’s Counsel and the Respondent’s issue would be considered thereunder as well. The two issues for determination are therefore as follows:-
(1) Whether the learned Justices of the lower Court were right when they held that the doctrine of Al- Izar was not observed by the trial Court.
(2) Whether the learned Justices of the lower Court were right to have allowed the appeal based on arguments that are at variance to the issue for determination.

ISSUE ONE
Whether the learned Justices of the lower Court were right when they held that the doctrine of Al-Izar was not observed by the trial Court.

In the appellant’s brief of argument at paragraphs 4.1 – 4.3 of pages 4 and 5, the learned Counsel to the Appellant referred this Court to the holding of the lower Court at pages 385 -386 of the record of appeal that the trial Upper Sharia Court did not observe the doctrine of Al-Izar and therefore breached the principles of fair hearing of the Respondent and consequently set aside the judgment of the trial Upper Sharia Court.

Learned Counsel submitted that this holding of the lower Court was wrong in law and he referred this Court to the proceedings of the trial Upper Sharia Court at pages 170 of the record of appeal and contended that parties before the trial Upper Sharia Court were represented by Counsel throughout the trial to judgment and it was the Respondent’s Counsel who informed the trial Court that they have closed their case and needed a date to address the trial Court and the request was granted.

The Respondent in his response at paragraphs 4.1 – 4.9 of the Respondent’s brief of argument learned Counsel submitted that the arguments of the Appellant at pages 4 -8 of the Appellant’s brief of argument is misconceived as to what Al-Izar connotes. The Respondent’s Counsel submitted that Al-Izar is akin to allocutus in criminal trial and failure to observe it is as grave as a Court assuming jurisdiction where it has none, hence failure to observe Izar is as fatal as it amounts to legal infraction that a judgment must be set aside. He stated that Al-Izar is not only applicable in cases where parties are not represented by Counsel but even where they are represented, Al-Izar cannot be jettisoned. According to the Respondent’s Counsel the mandatory question that must be put across to parties is:-
“Do you have any other thing to say or any excuse before the Court pronounces its judgment in this suit?”

And that the question must be asked in the presence of two unimpeachable witnesses and the response of the litigant to the question put to them shall be recorded accordingly.

It is important to begin by saying that under the principles of Islamic Law, the burden of proof lies with the person who asserts by calling two unimpeachable witnesses to prove his assertion. 

At the end of the case of the Complainant/Claimant, the Defendant shall enter his defence by calling his own witnesses. At the close of evidence by both parties and before judgment is entered by the trial Court, the trial Court will ask the parties if they have anything more to say before the Court pronounces its decision or judgment.
This question put forward to the parties before the decision of the trial Court is what is referred to as “Al- Izar”. Al – Izar as rightly submitted by the Respondent’s Counsel is akin to allocutus in criminal trial. However, under the principle of Islamic Law, it is to ensure fairness under the doctrine of “audi alterem partem”. In the book of Ashalul Madarik, volume 3 at page 119, it states:-
“Judge shall not pass judgment until he finished full hearing he shall ask the Defendant whether he has more defence.”
Also in the book of Ihkamul Ahkam, a commentary on Tuhfa at page 19, it says:-
“When a judge wanted to write his judgment against the Defendant he shall ask him if he has anything to present.”
Islamic jurists are unanimous that Al-Izar is more applicable to the Defendant and it is against the background of ensuring that fair hearing is accorded to the Defendant before the trial Court pronounces its decision. In the case of KABIRU MOHAMMED LIYAFA V HAJIYA KYAUTA, (2018) LPELR 45267, this Court in considering the effect of failure to apply Al-Izar at the appropriate time held as follows:-
“The main contention in the present case is that the trial Court had proceeded to enter judgment against the Appellant without considering Al-Izar. It is incumbent on the judge either at trial or on appeal that before judgment is finally delivered; the judge must give parties final opportunity to state and produce evidence in discharging the burden of proof. At the end of the party’s case the Court shall ask them whether they have anything more to say before the Court pronounces its judgment. This is what is called Al-Izar, something similar to allocutus in English criminal justice which must be conducted before an accused person is convicted.”
See MEDINAT & ANOR V ADAM (2013) 1 SQLR (pt. IV) page 152 at 162. In the unreported appeal no. CA/IC/142/86, IBRAHIM V ISYAKU & 2 ORS Wali, JCA (as he then was) said:
“…It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court.”
See also WANGARA V ISLAMIY ARKARA, (2006) 3 SCR (pt 1) 168.
Now as I said earlier, Al-Izar is observed by the trial Court more to give the Defendant another opportunity whether he has more defence to present or he has anything to present before the trial Court pronounces its decision or judgment.

In the instant appeal, I have gone through the record of proceeding of the trial Upper Sharia Court as contained in the record of appeal.

The record of proceedings before the Court shows that all the four witnesses called by the Claimant now Appellant were exhaustively cross-examined by the Respondent’s Counsel and equally the Appellant’s Counsel painstakingly conducted cross-examination on the witnesses called by the Respondent. Then at the conclusion of cross-examination of the Respondent’s witnesses, the Appellant’s Counsel submitted thus:- ” Those are our questions”
The Respondent’s Counsel then informed the Court as follows:-
“We have closed our defence. We will take two weeks, 23rd September, 2014 for us to come and address the Court.”

Pursuant to the above application by the Respondent’s Counsel, the Court ruled as follows:-
“You are given 23rd September, 2014 for you the Defendant to come and address the Court.”
(See pages 170- 171 of the Record of Appeal)

The trial Upper Sharia Court on 1st May, 2015 delivered its judgment after the address by the Counsel to the respective parties and the trial Upper Sharia Court held at page 197 of the Record of Appeal as follows:-
“So far that, this Court has given you Aminu the Plaintiff the possession of this farm at Anguwan Kawo Erena at the Shiroro Local Government Area of Niger State which is at Eastern part boundary with the Plaintiff, at Southern part with Kaura, at Western part with the Defendant, at Northern part with River.”

On appeal, by the Respondent (Appellant before the lower Court), the lower Court at pages 319 -389 of the Record of Appeal delivered its judgment and in particular at page 306 lines 6 – 9 of the record of appeal held as follows:-
“It is our considered opinion therefore that the proceedings at the lower Court were conducted without fair hearing according to Sharia law having not complied with the doctrine of Izar and therefore liable to be set aside. Issue one (1) is therefore resolved in favour of the Appellant.”

At the concluding part of the judgment of the lower Court, it says:-
“This appeal succeeds the judgment of the lower Court is set aside for lack of fair hearing. It is hereby ordered that this case be sent for retrial to Upper Shana Court Kuta before another judge other than the one that heard it before.”
(See page 389 of the record of Appeal)

Arising from the above decision of the lower Court that Al – Izar was not observed, I have carefully perused once again the record of proceedings of the trial Upper Sharia Court particularly at pages 170 – 171 of the record of proceedings which I had earlier reproduced the proceedings therein that took place in open Court between the two Counsel i.e the Appellant’s Counsel, the Respondent’s Counsel and the Court. By the doctrine of Al-Izar, which I earlier mentioned is more on the side of the Defendant, the Respondent’s Counsel applying for the 29th September, 2014 to address the Court and the Court granting the application, that in itself amounts to Al-Izar in Islamic Law of jurisprudence. In other words, for the Defendant. i.e Respondent to have informed the trial Upper Sharia Court that they had closed their case and applied for a date to address the Court, that is Al-Izar because the Respondent now have the opportunity to go over, articulate and ventilate his grievances in the case. The essence of an address of Counsel cannot be over-emphasised.
In OBODO V OLOMU (1987) 3 NWLR (pt. 59) 111 at 121 Belgore JSC (as he then was) stated that:
“Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases it is after address that one finds the law on the issues fought in favour of the evidence adduced.”
Nnamani JSC (as he then was) at page 124 of the same report stated that:-
“In normal course of things, the proceedings cannot be said to be complete until parties have addressed the Court.”
In SIGBENU V IMAFIDON, (2009) 13 NWLR (pt. 1158) 231, it was held that right of address is a fundamental requirement of fair trial.
Thus, the address of the Respondent as in the instant case before the trial upper Sharia Court is an integral part of Al- Izar in guaranteeing fair trial or fair hearing. Hence therefore the holding of the lower Court at page 386 of the Record of Appeal that the proceedings at the lower Court were conducted without fair hearing according to Sharia law having not complied with the doctrine of Izar and therefore liable to be set aside is wrong in law as such findings was not based on facts and evidence before the lower Court. More importantly, throughout the case of the Respondent before the trial Upper Sharia Court including the address of Counsel, nowhere the Respondent raised the issue of Al-Izar. There is also nothing on record that the Respondent sought the leave of the lower Court to raise the issue of Al-Izar. Thus, the holding or finding of the lower Court at pages 385 -386 of the Record of Appeal is to say the least, perverse. In the case of JACOB A. JOLAYEMI & ORS V ALHAJI RAJI OLAOYE & ANOR, (2004) LPELR-1625, the Supreme Court held that finding which are not supported by evidence, they are patently perverse. The Apex Court held as follows:-
“It is the law that perverse findings cannot sustain a judgment even if upheld on Appeal by the Court of Appeal, see FASHANU V ADEKOYA, (1974) 6 SC 83 at 91; OKO V NTUKIDEM (1993) 2 NWLR (pt 274) page 124 at 135.”
This Court has therefore a duty to set aside such perverse finding. Accordingly, the finding of the lower Court that there was no fair hearing and Al-Izar was not observed by the trial Upper Sharia Court, I hold the view that that holding was wrong in law and I so hold.

I resolve issue one in favour of the Appellant and against the Respondent.

ISSUE TWO
Whether the learned Justices of the lower Court were right to have allowed the appeal based on arguments that are at variance to the issue for determination.

The Appellant’s Counsel submitted at paragraphs 4.7 – 4.10 in the Appellant’s brief of argument to the effect that the Respondent herein as Appellant before the lower Court raised five (5) grounds of appeal in his notice of appeal i.e the notice of appeal filed on 13th July, 2015 and additional grounds of appeal filed on 20th January, 2016. According to learned Counsel, the Respondent formulated three issues for determination in his brief of argument without indicating the grounds of appeal from where the issues were distilled from thereby leaving both the Appellate lower Court and the Appellant to resort to speculations and conjectures. He referred this Court to pages 1, 9 -10 and 343 of the Record of Appeal.

Further, it is argued by the Appellant’s Counsel that under issue two (2) for determination distilled from grounds three (3) of the notice of appeal the argument related to analysis and evaluation of evidence and not fair hearing as the ground purports to suggest. He referred this Court to pages 345 – 346 of the record of Appeal. He submitted that he urged the lower Court to discountenance the issue and strike out the ground on the basis of incompetence (see pages 361 – 362 of the Record of Appeal) but the lower Court after agreeing with them and made a finding, failed to reject the arguments and strike out the ground. (See pages 386 of the record of appeal).

The Respondent’s Counsel in his brief of argument at paragraphs 5.11 and 5.12 submitted that Sharia Court is enjoined to do substantial justice in determining issues before it as the role of the Appellate Court under Islamic Law is different from the role of such Court under common law as it relates to grounds of appeal, issues and even arguments. He submitted that it is the position under Islamic law that where parties at Appellate Court file grounds of appeal and raise issues from the grounds of appeal, the Court is not bound to consider any of such grounds and or issues if the Court believes that such issues will not lead to the proper determination of the case before it. The Court can formulate new issues and base its judgment on such issues as long as substantial justice is done.

Now before I proceed to resolve this issue two (2) of the Appellant, it is on record before this Court that the Respondent (as Appellant) before the lower Court raised five (5) grounds of appeal challenging the decision of the trial Upper Sharia Court sitting at Kuta, Shiroro Local Government. (See pages 1, 9-10 of the Record of Appeal). The Appellant (as Respondent) at the lower Court, in his brief of argument raised preliminary objection that the five (5) grounds of appeal so raised in the notice of Appeal, the three issues for determination distilled by the Respondent, there was no indication as to the grounds the issues were distilled from and the Appellant and the lower Court were left to speculations and conjectures. The lower Court at pages 361 – 362 of the Record of appeal agreed with the Appellant’s Counsel and grounds 1, 4 and 5 were struck out by the lower Court. In otherwords, the grounds of appeal that were extant before the lower Court are:-
GROUND TWO (2)
The Upper Sharia Court Kuta erred in law thereby occasioning a miscarriage of justice to the Appellant when it failed to observe Izar.
GROUNDS THREE (3)
The Upper Sharia Court Kuta erred in law thereby occasioning miscarriage of justice to the Appellant when it denied the Appellant fair hearing.

The lower Court at page 384 of the Record of Appeal adopted the three issues formulated by the Respondent’s Counsel to determine the appeal. The three issues are:-
(1) Whether the judgment of the trial Court will be set aside for failure to observe Izar.
(2) Whether the judgment of the trial Court can be set aside for denying the Appellant fair hearing.
(3) Whether the judgment of the trial Court can be set aside for failing to properly evaluate the evidence adduced before it.

The Respondent (as Appellant) before the lower Court did not tie or indicates the grounds upon which the three issues were culled from.

In otherwords, before the lower Court, the Respondent had two grounds of appeal that are extant with three issues distilled for determination. This is clearly against the rule on proliferation of issues. In the case of AKINYEDE OLAIYA V STATE, (2017) LPELR-43714, the Supreme Court of Nigeria held as follows:-
“The breakdown of the five issues shows that the Appellant nominated two issues each from his grounds 1 and 3 of the grounds of Appeal. Only one issue was raised from ground 2 of the grounds of appeal. And that is issue 3 which, as formulated, is consequent upon a suggested positive affirmation of issues 1 and 2 proliferated from ground 1 of the grounds of appeal. In the practice and procedure of this Court, proliferation of issues from a single ground of Appeal is wrong and unacceptable. The permissible practice is that a party may formulate, from a ground of appeal or a number of grounds of appeal only one issue, and not several issues from one ground of Appeal. Proliferation of issue is not permitted by law. AGU V IKEWIBE, (1991) 3 NVVLR (pt 180) 385; MADUEKE V MADUEKE, (2000) 5 NWLR (pt546) 409.”

Now by the Appeals Practice Direction of Niger State, appeals to the High Court Division of Niger State shall state the complaints (grounds) in the notice of appeal and the appeal shall be heard and determined on briefs of argument and any issue distilled for determination must be covered by a ground of appeal. See paragraphs 2.01 (a) – (d), 2.02 (a) – (c) and 2.03 (a) – (c) of the Practice Directions of Niger State Legal Notice No. 12 of 10th October, 2022. In the instant appeal, the three issues were not tied to any of the two grounds in the Notice of Appeal as provided by the practice directions and the issues were also against the rule on proliferation of issues. And the lower Court proceeded at page 384 of the Record of Appeal and held as follows:-
“With regards to the substantive arguments of parties to this Appeal, issues 1, 2 and 3 argued by the parties are hereby adopted.”

The lower Court ought to have been a little circumspect after striking out grounds 1, 4 and 5 of the Notice of Appeal but proceeded to adopt the three issues that were not tied to any ground.

Another apparent erroneous finding by the lower Court was in respect of issue two (2) of the Respondent where the arguments proffered does not relate to the presumably ground of appeal. (See pages 361 – 362 of the record of Appeal). The lower Court held as follows:-
“With regard to issue two (2), it follows without much ado that it is dependent and or consequential to issue one (1) above. Though, we agree with the submissions of learned Counsel for the Respondent that the arguments of Appellant’s Counsel under this issue do not seem to flow from the said issue. In the circumstances however, there will be no need to embark on that line of reasoning since issue two (2) in the first place depends upon and is hinged on the success of issue one (1). Consequently, having resolved issue one (1) in favour of the Appellant herein, it follows that issue two (2) would go the same way in that the judgment of the trial Court is bound by law, to be set aside for lack of fair hearing.”
The lower Court according to Appellant’s Counsel having found that issue two (2) and the arguments canvassed therefrom did not relate to ground two (2), the said ground two (2) is deemed abandoned and the arguments canvassed therein discountenanced.
I have however noted the submissions of the learned Counsel to the Respondent in the Respondent’s brief of argument at paragraphs 5.11 and 5.12 of page 16. There is no doubt that Sharia Court and indeed all Courts established by law are enjoined to do substantial justice in determining issues before them. And in doing so, it must be done in accordance with the law and not arbitrarily. In the instant case before the lower Court having made a finding agreeing with the Appellant’s Counsel that the arguments of Appellant’s Counsel under this issue does not seem to flow from the said issue, the lower Court ought to have discountenanced the arguments therein and indeed strike out issue two of the Respondent at the lower Court. In the case of THE GOVERNOR OF KOGI STATE & ORS V COL. HASSAN YAKUBU (RTD) & ANOR (2001) LPELR-3177 (SC) the Supreme Court held:-
“I agree that any discourse outside the issues formulated either by the parties or the Court is incompetent. See MANAGEMENT ENT V OTUSANYA, (1987) 2 NWLR (Pt. 55) 179 and BANKOLE V PELU, (1991) 8 NWLR (Pt211) 523.”
In the case of VINCENT UTO & ORS V MARCUS EZE & ANOR (2015) LPELR-25745, this Court as per Agim JCA (as he then was) now JSC stated that:
“Any argument in a brief of argument in an appeal that is not based on or consistent with a ground of appeal and the issue derived therefrom is incompetent and will be struck out. See IDIKA & ORS V ERISI & ORS (1988) 5 SCNJ 28, AKPAN V STATE (1992) 7 SCNJ 22.”
In the instant case, I agree with the finding of the lower Court and accordingly issue two (2) for determination of the Respondent at the lower Court is hereby struck out and arguments canvassed therein or derived from the said issue are hereby discountenanced.

Thus, issue two is hereby resolved in favour of the Appellant. In otherwords, the two issues for determination in this appeal are hereby resolved in favour of the Appellant and against the Respondent.

The appeal is therefore meritorious and it is accordingly allowed.

The decision of the lower Court in appeal no. NSHC/MN/26A/2015 setting aside the decision of the trial Upper Sharia Court Kuta and ordering retrial before another judge is hereby set aside. The judgment of Upper Sharia Court Kuta, Shiroro Local Government delivered on 1st June, 2015 is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, DANLAMI ZAMA SENCHI, JCA.

I agree with his reasoning and conclusion that the appeal is meritorious and it is accordingly allowed. The decision of the lower Court in Suit No. NSHC/MN/26A/2015 setting aside the decision of the trial Upper Sharia Court Kuta and ordering retrial before another Judge is hereby set aside.

I also affirm the judgment of Upper Sharia Court Kuta, Shiroro Local Government delivered on 1st June, 2015.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in draft, the leading judgment just delivered by my learned brother, Danlami Zama Senchi, JCA, wherein the two issues thrust up for determination in the appeal were resolved in favour of the Appellant.

I am allegiant to the reasoning which informed the manner in which the issues were resolved and the inexorable conclusion that the appeal is meritorious. Accordingly, I also join in allowing the appeal and on the same terms as set out in the leading judgment.
Appeal allowed.

Appearances:

Philip K. Emmanuel, Esq., with him, U. C. Okani, Esq. For Appellant(s)

I.R Abdullahi, Esq. For Respondent(s)