ALHAJI AHMADU JAKARAWA V. SANI ALH. SAINI & ORS.(2002)

ALHAJI AHMADU JAKARAWA V. SANI ALH. SAINI & ORS.

2002)LCN/1229(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 12th day of June, 2002

CA/J/17S/97

 

JUSTICES

UMARU ABDULLAHI   Justice of The Court of Appeal of Nigeria

IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

ISA ABUBAKAR MANGAJI   Justice of The Court of Appeal of Nigeria

Between

 

ALHAJI AHMADU JAKARAWA Appellant(s)

AND

  1. SANI ALH. SAINI
    2. MADIBO ALH. SAINI
    3. BABAYO ALH. SAINI Respondent(s)

IBRAHIM TANKO MUHAMMAD J.C.A (Delivering the leading Judgment): The direct complaint of the 1st plaintiff at the Kumo Upper Area Court (trial Court), formerly of Bauchi State is quoted as below:
“I Alhaji Ahmadu Jakarawa and 10 others, hereby instituted an action against Sani Alhaji Saini, Modibbo Alh. Saini and Babayo Alhaji Saini.
We are praying the court to receive our house and 26 farmlands from the custody of the respondents and to be handed (it) to us. The house and the farmlands in question are the ownership of our father who is now deceased. After his death, we could not share the inheritance amongst us. We left the said house and the 26 farmlands in the custody of Alhaji Sani, the father of Sani,  Modibbo and Babayo. Alhaji Sani is now dead, so, we would like the court to receive the said house and the 26 farmlands from the custody of the respondents and to be handed to us, we should like the court to share the property of our late father Jauro Yakubu amongst us.”
(underlining supplied by me).
After some interrogations by the court including the supply of the names of the heirs to the deceased, the trial court asked the defendants to reply to the allegation. All the defendants denied the claim and stated that the house and the farmlands belong to their deceased father. They counter-claimed that their father acquired them by purchasing some and clearing some. Evidence was taken by the trial court from both sides. The trial court also paid a visit to the Locus inquo. In its judgment, the trial court confirmed title of six farmlands to the 1st respondent and the remaining 20 farmlands and the house to late Jauro Yakubu.
Dissatisfied with the trial court’s judgment, the respondents appealed to the Bauchi State Sharia Court of Appeal (lower court). After examining the grounds of appeal filed and the additional statements by the parties, the lower court re-heard the appeal before it by taking fresh evidence under section 7 of the Sharia Court of Appeal Rules Cap 122 of 1963 Laws of Northern Nigeria. It set aside the decision of the trial; court and substituted it with its own decision in the following terms:
“We allow the appeal of Sani and we set aside the decision of the Upper Area Court, the farm which Alh. Ahmadu sold to Alhaji Magaji at the cost of N70, 000.00 the bargain, no longer exist, the farm belongs to Jauro Saini, so also the house, and the rest of the farms in possession of the masses, they will continue be in their possession, (sic) on the conditions given to them, that if a person migrated he leave it. (sic)”
Dissatisfied with the above decision, the respondents as appellants’ herein, appealed to this court.
In this Court, parties complied with the provision of Order 6 Rules 2 & 4 of the Court of Appeal Rules 1981 (as amended) by filing their respective briefs of argument. On the hearing date, learned counsel for the appellant adopted and relied on his brief. He had nothing more to add. He urged us to allow the appeal. Learned counsel for the respondents adopted his brief and urged us to dismiss the appeal.
In his brief of argument, learned counsel for the appellant formulated the following issues:
“(1) Whether the Sharia Court of Appeal had jurisdiction to entertain the Respondents appeal when the dispute between the parties was not a matter involving Islamic personal law.
(ii) Whether the Sharia Court of Appeal was right when it awarded the 26 farmlands to the respondents when their claim was limited to only 17 out of the 26 farmlands in the appellant’s possession.”
In their joint respondents’ brief, the respondents formulated 2 issues as follows:
“(1) Whether the Sharia Court of Appeal Bauchi State had jurisdiction to entertain the appeal considering the nature of claim before the trial Upper Area Court Kumo.
(2) If the first issue is in (sic) answered in the negative whether the Sharia Court of Appeal Bauchi State awarded to the Respondents more than or above what they counter-claimed.”
I will treat this appeal in line with issues formulated by the appellant. The appellant’s first issue questions the jurisdiction of the lower court to entertain the matter on appeal before it. Learned counsel for the appellant submitted that the claim before the trial court was based on ownership and recovery of a house and 26 farmlands. It was a straight forward case of a land dispute between the parties and there was no question of Islamic Personal Law involved in the case. The jurisdiction of the lower court, he argued, must be such as is provided by the Constitution. Learned counsel cited and quoted the provision of Section 242 (1) of the 1979 Constitution of the Federation. He further cited the provision of Section 11 of the Sharia Court of Appeal Law of Bauchi State. Cases such as ALHAJI LAWAN ZARIA CITY V. ALHAJI MAIWADA JAYA (unreported) Appeal No.FCA/K/110)BO and several others, were cited and relied upon by learned counsel for the appellant. Learned counsel for the respondents on the other hand, submitted that the lower court had jurisdiction to determine the appeal before it as the issues raised related to question of heritable estate withheld from the appellant and other heirs. He submitted that the claim of the plaintiff before the trial court was that of succession and or withholding of heritable estate to the heirs. He cited and relied on authorities such as section 242 (2) (c) of the Constitution 1979, and GARBA V. YARO (1991) 1 NWLR (pt 165) 102, among others. He urged us to dismiss the appeal on this issue.
Let me start by stating the general principle of the law that where issue of jurisdiction is raised, it is the duty of the court to determine it at the earliest opportunity. See: TEAM ASS. V. NNPC (1996) 3 NWLR (pt. 439) 621. NDLEA V. OKORODUDU (1997) 3 NWLR (pt 492) 221. Appellants issue No 1 challenges the jurisdiction of the lower court to entertain the appeal before it. The general law on jurisdiction of an appellate court is that it is the claim of the plaintiff at the trial court that determines the jurisdiction of an appellate court. See: BAKA V. DANDARE (1997) 4 NWLR (pt 498) 244; MUNINGA V. MUNINGA (1997) 11 NWLR (pt 527) 1. Now, taking a look at the printed record of proceedings in respect of this appeal, it is clear that the claim of the plaintiff/appellant, in my view, was not limited to ownership of land between the parties but was an issue that involved the determination of inheritance/succession (Mirath) under Islamic law. I come to this conclusion having regard to the following:
(a) claim of the plaintiff:
The claim of the plaintiff sought among other things the following:
“The house and the farmlands in question are the ownership of our father who is now the deceased. After his death, we couldn’t share the inheritance amongst us. We left the said house and the 26 farmlands in the custody of Alhaji Sani, the father of Sani Modibbo and Babayo. Alhaji Sani is now dead, so we should like the court to receive the said house and the 26 farmlands from the custody of the respondents and to be handed to us, we should like to share the property of our late father Jauro Yakubu amongst us.”
(b) Evidence:
(i) In his evidence PW 3, Sulaiman Umaru testified as follows:
“At that material time the inheritance was yet to be divided.
(ii) DW1, was asked by the trial court whether the inheritance of Jauro Yakubu was shared.
He replied that he did not know.
(c) The trial court:
(i) The trial court put questions to several persons e.g. Sani who was the 1st plaintiff:
“Court to Sani: has Jauro Yakubu inheritance already divided’?
Ans: Sani we don’t know, she wants the inheritance to be divided.”
(ii) In its findings, and judgment, the trial court made inheritance an issue and gave some of the farmlands and the house in dispute to the heirs of the deceased.
(d) The lower court:
The lower court re-visited the distribution of the estate made by the trial court (pp 49 – 52 of the record).
Section 242 (2) (c) of the Constitution of the Federation 1979 (S.277) (2) (c) of the 1999 Constitution) has provided as follows:-
“For the purpose of subsection (1) of this section, the Sharia Court of Appeal shall be competent to decide –
(a) …
(b) …
(c) any question of Islamic personal Law regarding a WAKF, gift, Will or Succession where the endower, donor, testator or deceased person is a Moslem”.
(underlining supplied for emphasis).
The complaint of the appellants as plaintiffs before the trial court was that the landed properties in dispute belonged to their deceased father. They entrusted such properties to the respondents father (who was also. deceased) before distribution of same to the respective heirs took place. They now wanted the trial court to receive back these landed properties and distribute them to the legal heirs of the deceased.
The respondents’ father did not return such properties to the heirs before he too died. This therefore was a clear case of withholding of heritable estates. Uthman Mohammed, JCA (as he then was) in the unreported case of Alhaji Adamu Maithodu v. Saidu Sarkin Kaji. Appeal No.CA/J/215/89 delivered on 25/10/90 stated inter alia while interpreting the provision of section 242 (2) of the 1979.
It is my view that before a dispute could become a question regarding to succession it must make the succession an issue. I have endeavored to list below how an issue could be a subject of succession as envisaged by S. 242(2) (c) of the 1979 Constitution. My list is not exhaustive. It is only a guide to the situations which would lead to a dispute concerning inheritance. Such dispute are as follows:
(a) A dispute over the failure to distribute the estate after the death of the deceased.
(b) A dispute over the devolution of the estate between the heirs.
(c) A dispute over any heritable estate which any person withholds away from the heirs.
(d) A dispute over the right to make a particular property within the estate.
(c) A dispute over a gift of a particular property said to have been made by the deceased in his life time.
(f) A dispute/over payment of a debt, incurred by the deceased in his life time, from the estate he or she had left behind.
(g) A dispute over the exclusion of an heir from inheriting from the estate. And all such dispute which can be attributed to the estate succession.”
This case was later followed by GARBA V. DOGON YARO (supra). I already have made it clear earlier that the situation in the appeal on hand falls properly under paragraph (c) above. Therefore the dispute qualifies as one on succession and by virtue of the provision of section 242(2) of the 1979 Constitution and section 11 of the Sharia court of Appeal Law, Cap 122, Laws of Northern Nigeria, 1963 the lower court had jurisdiction to entertain the appeal and I so hold. Issue NO 1, is resolved accordingly in favour of the respondents.
Issue NO 2 is on whether the lower court was right in awarding the 26 farmlands to the respondents when their claim was limited to only 17 out of the 26 farmlands. Learned counsel for the appellant argued that at page 4 lines 19 – 24 of the record of appeal, the respondents claim was limited to the house and 17 farms. He submitted that the award of the 26 farms and the house occasioned a serious miscarriage of justice.
A court has no power to award to a party that which he did not claim or more than what he claimed. He relied on EKPENYONG & 3 ORS V. NYONG & 6 ORS (1975) 2 SC 71 at 80 – 81; AGU v. ODOFIN (1972) 3 SCNJ 161 at 173. Learned counsel concluded that the award was done without jurisdiction and cannot stand. He urged us to set it aside.
The respondents’ counsel conceded that a court of law cannot and should not grant more than what is asked for or grant a relief which have not been requested by either party to a suit. Learned counsel argued that from the record, there is nothing to show that the respondents were confirmed with 26 pieces of farmlands and a house as argued by learned counsel for the appellant. Thus the lower court did not award more than or awarded relief which was not asked by the respondents. He urged us to dismiss the issue and affirm the lower court’s decision.
The claim of the appellants as plaintiffs before the trial court was limited to a house and 26 farmlands. What the 1st plaintiff and 10 others stated as per page 2 of the record contains, inter alia;
“I Alhaji Ahmadu “Jarkawa and 10 others, hereby institiced (sic) (instituted) an action against Sani Alhaji Saini Modibbo Alh. Saini and Babayo. Alh. Saini. We are praying the court to receive our house and 26 farmlands from the custody of the respondents and to be handed (it) to us.
We left the said house and the 26 farmlands in the custody of Alhaji Saini, the father of Sani, Modibbo and Babayo. Alhaji Sani (Saini) is now dead. So we should like the court to receive the said house and the 26 farmlands from the custody of the respondents and to be handed to us, we should like the court to share the property of our late father Jauro Yakubu amongst us.”
In compliance with the laid down procedure in an Islamic Law trial, the trial court judge took the names of the 1st plaintiff’s co-heirs. Their number rose to fifteen. The court then turned to each of the defendants for a response to the claim made against them. Each of the defendants denied the claim, for instance the 1st defendant said:
“I heard but it is not true.”
So also the remaining defendants, (pages 3 – 4 of the record). Not only did each of the defendants deny the plaintiff’s claim, each made a counter-claim. The counter-claim made by each of the defendants is herein below reproduced:
“We told them that there was no any denial that the said property do not belongs (sic) to their father but we are saying the lands were purchased by our father, and some of the lands were cultivated by our father. The lands belonged to our father but he is now dead.”
2nd defendant: Modibbo Alh. Saini:
“The land in dispute belongs (sic) to our father. He was the one who cleared them; we have some witnesses those that would confirm to the court that the said house belonged to our father.”
3rd defendant: Babayo:
“The matter is not so the lands in dispute belonged to our father. He was the one who cleared them, and some were purchased by him. We have some witnesses those that would give evidence that the lands are the ownership of our dad.” (See pages 3 – 4 of the record).
The trial court wanted to know with certainty, which, out of the said properties in dispute were purchased or cultivated by the defendants’ father. 1st defendant replied:
“Seven farms were bought by our dad… Ten farmlands were cleared by our father.” (page 4 of the record).
2nd defendant:
“He purchased seven farmlands and he cleared them.” (page 4 of the record).
From the above, it is clear that there were two independent claims before the trial court. i.e. the claim by the plaintiffs and the counter-claim by the defendants. The trial court called upon the plaintiffs to prove their claim. Three witnesses testified for the plaintiffs. The defendants called five witnesses in proof of their counter-claim. At the end, the trial court concluded as follows:
“The court had now deducted 6 farmlands that belong to Alhaji Saini out of 26 lands remaining are the ownership of Jauro Yakubu and to he handed it to heirs of Jauro Yakubu. The following lands belongs (sic) to the heirs of Jauro Saini:
The 10th land which now is in the custody of Ahmadu. The 13th land in the custody of Yunusa. The 14th land in the custody of Dahiru. The 15th land for the neighbors and Dahiru. The 17th land in the hands of the heirs of Jauro Saini. The 18th land in the custody of Buba Maigari.
Court – The 20 farmlands and the house is hereby confirmed to Yakubu (deceased).”
In their Grounds of Appeal before the lower court, the defendants as appellants stated:
“Our father Alh. Saini he died and left 26 farmlands and a house to be inherited 10 out of the farms, he cleared them himself and the other seven (7) he bought them and the rest of the nine (9) they belongs (sic) to his father which they are in his possession, he left us, 20 of us his heirs, 10 male and 10 females.
2. After the death of our father, then our Uncle Alh. Ahmadu Jakarawa sued me that, the farms and the house left by our father belong to his father that is our grandfather, which their inheritance has not been distributed.
3. The Upper Area Court has requested us to bring witnesses and we produced witnesses later, he decided and confirmed six (6) farms to us then the rest of the 20 farms and a house he confirmed it to Alh. Ahmadu. For that I urged this Islamic Court to try the case for us.”
After taking additional explanations from the parties, the lower court observed:
“After we have read the copy of the case and we have listened to the statements of the parties, we understood that, these farms in dispute between the parties most of them were in possession of many people (masses) we sees (sic) it as a just move, to called (sic) those people who were in possession of these farms so as to know who gave them these farms, we did this in accordance to section 7(a) of which gave power to call new witnesses who earlier gave evidence.”
Thus, the lower court want ahead, suo motu to call some named witnesses who testified in favour of the defendants/appellants/respondents. The lower court concluded in the following words:
“Based on these explanations, we have set aside the inheritance and distribution of twenty (20) farms and a house which the upper Area Court Kumo, did because in accordance with Islamic Law, it provides that what has been established beyond any doubt belonging to the decease, it is the one to be distributed in inheritance, for that the farm which Alh. Ahmadu Jakarawa sold to Alh. Magaji at the cost of N70, 000.00 (Seventy thousand Naira), the bargain no longer exists because investigation showed that the farm belongs to J. Saini, his heirs should inherit it, so also a house which J. Saini was living in it up to his dead belongs to him, it will also be inherited by his heir. The rest of the farms whom (sic) were in possession of these who were in their possession, they will continue to be in their possession based on the condition stated in giving them, that who ever migrated should leave it to the heirs of the person who gave them.”
Let me observe firstly, and with due respect to the learned Kadis of the lower court, that section 7(2) of the Sharia Court of Appeal Rules, Cap. 122, Laws of Northern Nigeria, 1963 was provided in order to allow for a re-hearing or calling for further evidence where it extremely becomes imperative.
Situations may arise such as oversight in calling or omitting indispensable witnesses who may tender some vital document, inadvertence on the side of the trial court in not assessing evidence led before it, refusing to give a party a fair hearing etc. Thus in order to save time, energy and resources of the litigants, the section was enacted to, minimize such difficulties. It cannot be used to supplant the view the appeal court would have had if it were to sit as a first instance or trial court. The main duty of the appeal court as the name suggests is to limit itself to appeals filed before it. Seldom does it resort to such power of review as conferred by section 7 of the Sharia Court of Appeal Rules. After all, the trial judge, in my view, did his best. He took evidence from the plaintiffs on their claim. He also took evidence from the defendants in respect of their counterclaim. He assessed the evidence and came to the conclusion culminating in his Judgment.
Secondly, the lower Court considered issues on ‘HAUZI’ (prescription) and sale of one of the landed properties. These issues were never raised or canvassed before the trial court and there was no appeal on that. I find it necessary to comment though in passing that an appeal court is bound by the record of the lower court. It cannot embark on a jamboree of discovery. See; BASHIR V. AUDU (1999) 5 NWLR (pt. 603) 433.
Thirdly, the lower court called “those people who were in possession of these farms so as to know their stand and to know who gave them these farms.” These people were called presumably as witnesses. In actual fact they were drawing benefit from such landed properties as is clear from the above statement. As beneficiaries, can they be competent witnesses in their own causes under Islamic Law? I do not think so. This is because it is trite law under Sharia principles that a partner or sharer cannot be a competent witness on the matter he participates as a partner. It is said by the author of IHKAMU AL-AHKAM, while listing people who are not competent to give evidence:
Translation:
Also the evidence of a suspect i.e. a person whose evidence is questionable as to whether it will confer some benefit upon himself.
See: Al-Mayyara Vol. 1 page 58; Al-Tasulits BAHJAH FI SHARW AL-TUHFA, Vol. 1 page 96.
By their possession of the various lands in dispute and the MANFA’AH (usufruct) each derives from the land he holds, they can only become parties to the claim or defence thereof and not as witnesses.
Fourthly, there was no compelling reason for the re-assessment of the evidence given by the witnesses who testified before the trial court. What the lower court stated cannot be a valid reason. It states inter alia:
“the witnesses of the respondents Alh. Ahmadu Jakarawa their evidences (sic) were the same, while the evidence of the witnesses of the Appellant and brothers there evidences (sic) were not the same. Here if we look at the statements of the witnesses of Alh. Ahmadu Jakarawa one by one their evidence has no basis for a decision to rely on it.”
I think before an appeal court can discountenance any evidence led before a trial court, the appeal court has to come up with concrete and convincing reasons based on authorities which disqualify such evidence. Assessment of probative evidence is not within the province of an appeal court. It rather rests with trial court.
The decision of the lower court was based on the above reasons. The lower court had no reason to upset the decision of the trial court. The author of the Tabsirat Al-hukkam stated:
Translation:-
It is permitted for the Jurists (appeal Judges) to consider the lower court’s decision, where it is clear to them that it was wrongly based, they should overturn it. But where it was based in accordance with the laid down procedures, it should be affirmed and executed.
Thus, the exercise of re-distributing the respective landed Properties already conferred on the parties by the trial court was an exercise in futility as it was not based on any legal authority. Each of the parties made his definite claims before the trial court. It is a known principle under Sharia that a Judge grants to a plaintiff only what he justifiably claims and proves. The author of the IHKAM AL-AHKAM states:
See page 19 of the IHKAM AL-AHKAM.
Again the author stated:
Translation:
That a Judge should rely in his Judgment on witnesses basing (his evaluation) on what he understands from (the quality) of the evidence. If the evidence is impeached he should not admit it. If it is cogent and just, he should admit it. That is the consensus (of the Jurists).
See page 18 of the IHKAM AL-AHKAM: Again, a Judge has no reason to expand the claim of a plaintiff even where a witness did so in a mistaken belief. He can however accept reduction where appropriate. It has been stated in the TUHFAT – AL-HUKKAM:
Translation:
Reduction or increase is prohibited.
Except (in situation) where a witness excels other.
See page 39 of the IHKAM AL-AHKAM (supra) for details.
For the above reasons I resolve issue No 2 in favour of the appellants.
In conclusion, I find merit in this appeal and same is allowed by me. I hereby set aside the Judgment of the lower court. I affirm the trial court’s decision. There shall be N5, 000.00 costs in favour of the appellants against the respondents.

UMARU ABDULLAHI, P.C.A.: I had the benefit of a preview of the judgment just delivered by my learned brother (Dr.) I, T. Muhammad, J.C.A.
My learned brother had dealt with all the issues in this appeal to my satisfaction. I agree with his reasoning and the conclusions reached. I adopt them as mine. I shall accordingly allow the appeal, set aside the judgment of the lower Court, and affirm the decision of the trial Court.
I abide by the order of costs.

ISA ABUBAKAR MANGAJI, J.C.A.: I agree.

 

Appearances

  1. IBRAHIM HAMMANFor Appellant

 

AND

  1. H.M. LIMANFor Respondent

 

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