ALHAJI BABAN SULE v. GAJERE HAMIDU
In The Court of Appeal of Nigeria
Monday, the 11th day of January, 1988
Case Number: CA/K/166/86
ISLAMIC LAW AND PROCEDURE: THE RELEVANT PRINCIPLE OF ASSERTION OF CLAIM
In other words, he who asserts must prove. The relevant principles of Sharia can be found in Volume II of Bahjah, commentary of Tuhfah which can be translated as follows: “In a claim of immovable such as a house or a parcel of land in the possession of the defendant who denied the claim and asserted that he came into possession after he purchased it from the claimant or his heirs, the onus of proof of such purchase will be placed upon him. Where it has been proved by unimpeachable and reliable evidence, judgment will be dismissed. But where he failed to prove the purchase, the claimant will be entitled to judgment after he has subscribed to the oath of successful rebuttal. PER AIKAWA, J.C.A.
UMARU MAIDAMA Justice of The Court of Appeal of Nigeria
SANI SALITH AIKAWA Justice of The Court of Appeal of Nigeria
JOSEPH DIEKOLA OGUNDERE Justice of The Court of Appeal of Nigeria
ALHAJI BABAN SULE Appellant(s)
GAJERE HAMIDU Respondent(s)
AIKAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court Kaduna, sitting in its appellate jurisdiction setting aside the decision of the Upper Area Court, Zaria, and affirming the decision of trial Markarfi Area Court.
In the said trial at Markarfi Area Court, the respondent herein claimed against the appellant, the return of his irrigation plot which he pledged to the appellant for a loan of N40.00. The appellant admitted that the said irrigation plot belonged to the respondent who later sold it to him some 7 years ago at the cost of N40.00, the receipt of which amount was acknowledged by the respondent in the sale agreement which was prepared by Sarkin Kaura, a copy of which was given to him. Although the trial Judge had ascertained that the onus of proof of the sale rests on the appellant, he however, called upon the respondent to prove his title to the said plot. He therefore called three witnesses, among them, only PW1 gave evidence supporting that the said irrigation plot was pledged for a loan of N40.00 to the appellant. The two other respondent’s witnesses testified that they knew the said irrigation plot to have belonged to the respondent but did not know whether or not the transaction between the parties was a sale or a pledge. At this stage, the respondent closed his case.
The appellant indicated his intention to call five witnesses to prove that the said irrigation plot was sold to him. The witnesses were named as follows:
(1) Sarkin Kaura
(2) Mal. Sani Magetakarda
(3) Alhaji Yusufu
(4) Alhaji Aruwa
(5) Liman M. Ali
The first witness was Sarkin Kaura who deposed that he knew nothing about the irrigation plot in question because it was not within his area of authority; that he neither wrote the agreement between the parties nor did he instruct any person to prepare it on his behalf. That he did not sign it and therefore did not know anything about the said agreement.
The second appellant’s witness, Mallam Sani Magatakarda, in his evidence told the court that he knew nothing about the transaction and also knew nothing about the agreement between the parties. He did not know who wrote the letter (i.e. the agreement) and knew nothing about it.
The third appellant’s witness, Alhaji Yusufu Sule, said in his evidence that he could remember about 10 years ago, Baban Sule (i.e. the appellant) invited him to come and witness a transaction in respect of an irrigation plot he intended to buy. He bought it at the cost of N46.00 from the respondent/plaintiff. That he was suspecting that Mallam Sani (DW2) wrote the letter of agreement.
The respondent impeached the evidence of this witness on the ground that he was a consanguineous brother to the appellant.
The fourth witness said in his evidence that Baban Sule (appellant) was marrying his daughter; that about 10 years ago, the respondent/plaintiff invited him to see his irrigation plot which he later sold to the appellant at the cost of N46, 00. When the transaction was completed, an agreement thereof was prepared by Mallam Sani (DW2). That’s all.
The respondent impeached the evidence of this witness on the ground that the appellant was marrying his daughter.
The fifth witness, Alhaji Liman M. Aliyu, said in his evidence that about 10 years ago, the appellant invited him to witness the sale of an irrigation plot that he was buying from the respondent at the cost ofN40.00. Mallam Sani (DW2) prepared the agreement thereof and delivered it to the appellant. That’s all.
The respondent impeached the evidence of this witness on the ground that the son of this witness was married to the daughter of the appellant.
The appellant closed his case by putting in evidence the said sale agreement which was recorded as signed by nine witnesses. The trial Judge delivered a considered judgment in which he said inter alia as follows:
“The court is satisfied that the irrigation plot belonged to the plaintiff/respondent. It is also satisfied that the place was in pawn basis to the defendant/appellant not sold to him. So the court had ordered the plaintiff/respondent to pay back the defendant/appellant his N40.00 from today 22/11/84.”
This decision was set aside on appeal by the Upper Area Court, Zaria, which decided in favour of the appellant/defendant. Dissatisfied with this decision, the respondent/plaintiff appealed to the High Court of Kaduna State which as I mentioned earlier in this judgment had affirmed the decision of the trial Court to administer an oath.
Briefly, that is the proceeding of this appeal. I shall now proceed to consider the grounds and the argument in the brief of both sides. In the appellant’s brief, it was maintained in respect of ground one that the High Court had not evaluated the evidence adduced by the parties and it was submitted that if the evidence of the five appellant’s witnesses was properly evaluated and considered, it would have arrived at a different conclusion.
On the issue of evaluation of evidence, it is well settled that in conflicting claims between the parties, like the case in hand, it is for the trial Judge to carefully consider the evidence adduced by both sides and decide on the balance of probability which account he should accept – See Omoregbe v. Edo (1971) 1 ALL NLR 282.
The present case, as I have mentioned at the beginning of this judgment, came before the High Court on appeal. In such a situation, the High Court, as a Court of Appeal, is not allowed by law to re-evaluate the evidence adduced at the trial and supplant its views for those of the trial Judge who had the opportunity to judge the demeanour of each witness before him on matters of fact. But where the finding of the trial Judge is perverse, contrary to the evidence or based on non reception of admissible evidence, the High Court, sitting as a Court of Appeal, could interfere – See Ogundulu v. Chief Olabode (1973) 2 S.C. 71 at page 80; Lokoyi v. Olojo (1983) 8 S.C. 61 at page 74. But the finding in the present case is in accordance with the proper evidence adduced.
In view of the foregoing observation, ground one is misconceived and therefore fails.
The complaint in ground two is against the finding of the High Court namely that the evidence of PW1 had supported the respondent’s claim. It was argued that since PW1 did not witness the transaction between the parties but was told about it by the respondent, it was submitted that his evidence as such would be hearsay.
The evidence of PW1 earlier mentioned in this judgment shows clearly that he did not know the beginning of the transactions. It was the additional loan that came to his knowledge in a direct way. This was all that the respondent wanted him to say and as such it is relevant. The trial Judge had already found at the beginning of the trial that the gravamen of this case was the sale of the irrigation plot as asserted by the appellant. He tried the case in the procedure governed by the Sharia Law under which the onus of proof of the sale is always on the party that alleged it. In other words, he who asserts must prove. The relevant principles of Sharia can be found in Volume II of Bahjah, commentary of Tuhfah which can be translated as follows:
“In a claim of immovable such as a house or a parcel of land in the possession of the defendant who denied the claim and asserted that he came into possession after he purchased it from the claimant or his heirs, the onus of proof of such purchase will be placed upon him. Where it has been proved by unimpeachable and reliable evidence, judgment will be dismissed. But where he failed to prove the purchase, the claimant will be entitled to judgment after he has subscribed to the oath of successful rebuttal.”
This principle was applied by this court in the unreported decision in Appeal No.CA/K/2/86 between Alhaji Yaro Baduku v. Sani Audu where the plaintiff sued the defendant for a declaration of title to a parcel of land. The defence was that the land was sold to him by the plaintiff. In the end, the court found no sufficient evidence to support the sale. The court therefore granted the declaration to the plaintiff. On the foregoing observations, this ground fails.
The complaint in ground three is against the oath which the High Court ordered the respondent to administer. It was argued that it was meant to mark the completion of the evidence of PW1, and submitted that it would be wrong to have it administered as there was no admissible evidence in support of the respondent’s claim.
The High Court in allowing the respondent’s appeal stated inter alia. As follows:-
“It is hereby declared that the transaction between the appellant and the respondent was a pledge and not an outright sale. The appellant (respondent herein) must however subscribe to an oath before the trial Court and thereafter refund the sum of N40.00 to the respondent (appellant herein) before he can have possession of the land.”
From the above portion of the judgment of the High Court, it will be a misconception to regard the oath mentioned therein to be a factor complementary to the evidence of the respondent before this court. I have earlier mentioned that the respondent is not obliged to adduce any evidence.
He would only be liable to subscribe to the oath of successful rebuttal and after repaying the loan, take possession of his irrigation plot on the ground that the appellant has failed to prove his assertion. Ground three has no substance and it fails.
The complaint in ground four was against the rejection by the High Court of the evidence of DW3, 4 and 5 as a bunch of lies. It was argued that the mere fact that these witnesses stated in evidence that they knew nothing about the transaction and also prepared no sale agreement, does not entitle the court to make such a finding without weighing the evidence of both sides. It was submitted that it was therefore erroneously made. The case of Mogaji & Ors v. R. Odofin & Ors (1978) 4 S.C. 91 at page 94, was cited in support.
It was further argued that the sum total of the evidence, the appellant’s witnesses, DW3, 4 and 5 was that they witnessed the transaction between the appellant and the respondent. It was further submitted that this cannot be rejected on the denial that PW2 did not reduce the said transaction into the sale agreement in question.
In conclusion, it was argued and submitted that as the appellant was in possession of the pieces of land in dispute, the burden of proving that the appellant was not entitled to possession thereof lies on the respondent – the unreported case of this court No. CA/K/81/84, Abdullahi Magaji Mafolaku v. Usman Akanbi Ita Alamu, delivered on the 26th day of September, 1985 was cited in support of this submission.
In considering the foregoing submissions in support of this ground, it is pertinent to consider the principles of Sharia governing the evidence of witnesses. They are extensively provided in Ihkamul Ahkam pages 29-30; the English translation thereof read as follows:-
“A brother may be summoned to give evidence in a claim instituted by his brother except in claim where it may appear that the brother may claim some benefit or escape something harmful on his winning the claim. Also the evidence of a person in favour of his son-in-law and vice versa will not be accepted.”
In Bahja, commentary of Tuhfah Volume I page 96, the English translation of what learned Author provides reads as follows:-
“The evidence of a person within the marriage prohibited degree will not be accepted as good evidence.”
At the trial of the present case, the appellant’s defence was that the transaction for the purchase of the irrigation plot was before first defence witness, and second defence witness prepared the agreement thereof which was signed by both as well as the rest of the witnesses. When DW1 and DW2 were called, they deposed that they knew nothing about the transaction and prepared no agreement thereof. The trial Judge evaluated the evidence of these important witnesses and rightly concluded that they did not assist the case of the defendant. The evidence of DW3 was impeached by the respondent as the evidence of a consanguineous brother. On the authority of Shari a principle, in Ihkamul Ahkam (supra), the trial Judge was right to have rejected the evidence of DW3 while the evidence of DW4 was impeached on the ground that he is the appellant’s father-in-law. Finally, DW5 was impeached on the ground that his son is married to the daughter of the appellant.
I am of the opinion that the learned trial Judge had properly evaluated the evidence of both parties before him and had rightly rejected the evidence of all defence witnesses. The High Court was right to have affirmed the decision of the trial Markarfi Area Court. I have perused the decision in the case cited by learned Counsel for the appellant in support of his submission and I found that the case was irrelevant on the ground that it was a case of a claim of declaration of title to land, while in the present case, the claim is for the return of the land which the appellant, including all his witnesses, have no doubt that it belonged to the respondent.
Ground four has no substance and it fails. In the circumstances the decision of the High Court is left unimpeachable; the appeal therefore fails and it is hereby dismissed. The respondent is hereby ordered to comply with the order of the Kaduna High Court and return to the trial Court, subscribe to the required oath, pay back the amount due to the appellant and take over the possession of his irrigation plot together with the sum of N200.00 costs from the appellant.
MAIDAMA, J.C.A.: I have had a preview of the judgment just read. I agree with my learned brother, S. S. Aikawa, J.C.A. that the appeal fails. It is hereby dismissed. I also concur in the order of costs made by him in favour of the respondent.
OGUNDERE, J.C.A.: I am in complete agreement with the judgment of my learned brother, Aikawa, J.C.A. in this appeal including the orders made therein.