ALHAJI SODANGI SANYINNA v. ALH. ABUBAKAR SHARUBUTU SANYINNA
(2019)LCN/12527(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/S/124/2017
RATIO
LAND LAW: OWNERSHIP OF LAND
“It is trite that where a party has not given sufficient information as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See ANYAFULU & ORS V. MEKA & ORS (2014) LPELR 22336 SC and HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA & ANOR (1992) 5 SCNJ 90.” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
LAND LAW: BURDEN OF PROOF ACCORDING TO ISLAMIC LAW
“In accordance with Islamic law, in civil matters pertaining to both movable and immovable properties, the burden of proof is discharged upon evidence of two unimpeachable male witnesses, or evidence of one unimpeachable male witness and two or more unimpeachable female witnesses or more witnesses with Claimant’s oath in either case. See ABUBAKAR & ANOR. V. BASHIR (2017) LPELR 43272 (CA) Pages 7-8 Paragraphs F-C, HADA V. MALUMFASHI (2013) 1 SCQLR (Part 4) at Pages 24-26 Paragraphs F-B and BABA V. ARUWA (1986) 5 NWLR (Part 44) Page 774.” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ALHAJI SODANGI SANYINNA Appellant(s)
AND
ALH. ABUBAKAR SHARUBUTU SANYINNA Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of High Court of Sokoto State sitting in its Appellate jurisdiction; Coram Hon. Justice D.B. Sambo and Hon. Justice M.S. Sifawa in Suit No. SS/USC/01/2015 delivered on 20/12/2016. The facts leading to this Appeal as gleaned from the record of Appeal are that the Appellant was the Plaintiff before the trial Sharia Court Dogon Daji, where he sued the Respondent seeking for a declaration of title to a farmland situate at Gidan Bude, Tambuwal Local Government Area of Sokoto State in Suit No. CV/13/2013. The Respondent denied the claim.
The Appellant/Plaintiff in proof of his Claim, called a total number of 7 witnesses who testified on his behalf while the Respondent/Defendant called 5 witnesses. The trial Court dismissed the Claim of the Appellant/Plaintiff and conferred title of the disputed farmland on the Respondent/Defendant. Dissatisfied, the Appellant appealed to the Upper Sharia Court Tambuwal on 6 grounds. The Upper Sharia Court Tambuwal after hearing both parties set aside the Judgment of the trial Court and entered Judgment in favour of the Appellant by confirming the title to the land on the Appellant.
Dissatisfied, the Respondent appealed to the Appellate Division of the High Court of Justice Sokoto State. The Court after hearing the case set aside the decision of the Upper Sharia Court, Tambuwal and affirmed the Judgment of the Sharia Court Dogon Daji. Miffed by the Judgment of the lower Court, the Appellant lodged this Appeal out of time but by leave of this Court granted on 27th March, 2017.
The Record was deemed compiled and transmitted on 18/01/18; the notice of Appeal was filed on 27th March, 2017 upon three grounds of Appeal.
Specifically, the part of the Judgment complained about is as follows:
GROUND TWO
The lower Court erred in law when in its Judgment conferred the title over the disputed land to the Respondent.
1) Whereas it was conspicuously clear from the record that the Respondent never claim title over the land.
2) Whereas it was conspicuously clear that the Respondent never claim that the land was granted to him by Tambuwal Local Government Council.
3) Whereas the evidence led by the Respondent cannot support his case as they are at variance with his claim.
GROUND THREE
The learned Justices of the High Court erred in law when they suo moto raised the issue of the Appellant admitting not having title over the disputed land and relied on it as an admission by the Appellant in their Judgment without affording the Appellant the opportunity to be heard, thereby infringing on his Constitutionally guaranteed right to fair hearing.
Parties exchanged briefs of argument which were respectively adopted on 23rd October 2018. The Appellant’s brief filed on 2/3/18 was settled by M.A. Sambo Esq. while that of the Respondents filed on 24/09/18 and deemed on 25/09/18 was settled by Ibrahim Abdullahi Esq. From the three grounds of Appeal, learned Appellant’s counsel distilled two issues for determination, which were adopted by the Respondent as follows:
1) Whether it was just and right for the lower Court to affirm the dismissal of the Appellant’s Claim by the Sharia Court Tambuwal.
2) Whether the lower Court raised any issue suo moto without affording the parties opportunity to address it on the issue raised.
SUBMISSIONS OF APPELLANT’S COUNSEL
On the first issue learned Appellant’s Counsel submitted that the Appellant first cleared, settled on the disputed land and made the area lively. That in proof of his claim, he called 7 witnesses. He referred to AYOOLA V. ODOFIN (1984) 11 SC at 114 and submitted that it is trite that first settlement by traditional evidence is one of the most reliable modes of acquisition of good and valid title to land. He cited the evidence of PW1, PW2 and PW5 contained at Pages 4 and 6 of the Record of Appeal and submitted that their testimonies were never impeached or controverted and clearly support the claim of the Appellant that he was the original settler on the farm who founded it.
According to Counsel, the defendant only came into the picture when he was appointed as Chairman of the Committee to reconcile the dispute between Miyetti Allah herdsmen and farmers (of which the Appellant was among the farmers) by Tambuwal Local Government when the Respondent was the Vice Chairman of the Local Government and in the process took over the said land in dispute from the Appellant.
He further submitted that their assertion is supported by the evidence of DW3 and DW5 as reflected at Pages 13 and 15 of the Record of Appeal.
That the lower Court erred in law when it conferred title to the land in dispute to the Respondent when he does not have a claim to it. According to Counsel, a Claimant under Islamic law has two conditions to fulfill: 1) Stating his Claim and 2) Explanation.
He referred to the Book IHKAMUL AHKAM which is a Commentary of TUHFATUL HUKKAM Page 12 where it is stated: –
Translation: – ‘And the claim of the Plaintiff must satisfy two conditions; Identifiability of what it is, and Explanation.’
Where the above conditions are met he submitted, the claim will be read to the defendant. The defendant will either admit it or deny same.
Where he denies, the Plaintiff would be called to prove his claim.
In land matters, he said, the Plaintiffs succeed by calling 2 male unimpeachable witnesses. That where the Plaintiff fails to establish his claim, the defendant is called upon to take oath of rebuttal and he referred to GULMA V. BAHAGO (1993) 1 NWLR (Part 272) 766 at 768.
Where the defendant counter claims he further stated, both parties are given the opportunity to prove their respective claims and cited USMAN V. KUSFA (2013) 1 SQLR (Part 2) 1 at 4. According to Counsel, in Islamic law, where each party is a Plaintiff in his own case, each will be entitled to call witnesses to prove his case. ?If both produce credible witnesses the court will examine and see whose witnesses are more pious and trustworthy and give weight to their evidence.
In other words where both the Plaintiff claims and the defendant counter claims, both parties will be called to prove their claims.
Counsel submitted that in the instant case, the Respondent had no claim or counter claim before the trial Sharia Court Tambuwal to warrant him calling witnesses in proving his claim. That all the witnesses presented by the Respondent testified that he got his title through an allocation by Tambuwal Local Government; when no such claim was ever made by the Respondent before the trial Court.
Counsel submitted that under Islamic law it is not for the witnesses to make case for the Respondent; and that the lower Court erred in law when it held that a person in possession is not asked how he comes into possession. He said if there is an adverse claim, the person in possession can be asked how he comes about possession.
That it was wrong for the trial Court to have allowed the Respondent to call witnesses since he had no claim before it.
On issue number 2 whether the lower Court was right when it suo moto held that the Appellant admitted not having title to the land in dispute before the trial Sharia Court; Counsel submitted that a statement is only considered as an admission which may be oral or written made by a party to a proceeding before a Court of law and which may be adverse or detrimental to his interest if it is clear and unambiguous. He referred to HAMZA V. YUSUF (2013) 1 SQLR (Part 2) 55 at 65. According to Counsel the lower Court at Pages 61-62 of the Record of Appeal held that the Appellant admitted not having title to the land in dispute. That the lower Court made reference to the statement of the representative of the Appellant before it and held that it amounted to an admission by the Appellant.
Counsel submitted that even the statement of the Appellant’s representative which is at Page 2 of the Record of Appeal shows that the Respondent Alhaji Abubakar does not have a land there.
According to Counsel, where a Court raised an issue suo moto it has to afford the Parties the opportunity to address it on the issue; failure of which amounts to a breach of fair hearing. He cited FOMFO V. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY (2005) 5 SCNJ 213, MUHAMMAD V. MUHAMMAD (2005) AFWLR (Part 275) 502 at 508; and urged the Court to resolve the second issue in favour of the Appellant and against the Respondent, allow the Appeal and set aside the Judgment of the lower Court.
SUBMISSIONS OF RESPONDENT’S COUNSEL
ISSUE ONE
On the first issue for determination, Counsel submitted that this is a case in which the personal law binding on the parties is Islamic law. That unlike the position under the common law system, an Appellate Sharia Court is not restricted to the grounds or issues raised by the parties before it. That as reflected at Page 1 of the Records the claim of the Appellant was for a declaration of title to a vast area of land and that he based his title on the basis of permission given to him by Ardo Sanyinna to clear the farmland.
According to Counsel, it is the duty of the Appellant to prove that Ardo Sanyinna had the powers to give him possession of the land; and that the land does not belong to anybody including the Respondent. He referred to HADA V. MALUMFASHI (2013) 1 SCQLR (Part 4) at 24-26 Paragraphs F-B. That Ardo Sanyinna was not called as a witness by the Appellant before the trial Sharia Court notwithstanding that Ardo Sanyinna is alive and a material witness to the Appellant?s claims. That the evidence of PW2, PW3, PW5, DW2, DW3 and DW5 which the Upper Sharia Court Tambuwal held that supported the claims of the Appellant was clearly against the principles of Sharia Law, because the evidence of PW2 and PW3 at Pages 4-6 of the Records does not reveal who owns the disputed land or how the Appellant came into possession of the farmland. That it was based on the evidence of DW2, DW3 and DW5 which the Upper Sharia Court Tambuwal held that it supported the case of the Appellant, Pages 12-17 of the Records reveal that it was the Respondent that cleared the land and an allocation was made to him by Tambuwal Local Government Council after verification was conducted.
According to learned Counsel, the evidence of DW5 which is at Page 15 of the Record shows that the disputed farmland belong to the Respondent, that the Appellant was not among those that were allocated any land in the 300 hectares of land endorsed by Sokoto State Government. Counsel submitted that the evidence of PW2 was rejected by the lower Court because he said he resides in Sokoto town, he does not have a land that share boundary with the disputed land and that he was just a passerby as contained at Page 5 of the Records. It is the Counsel’s submission that in Islamic law Respondent?s possession of the disputed land is treated as evidence of one witness and he presented five witnesses out of which the trial Sharia Court believed four of them. He referred to ABUBAKAR & ANOR. V. BASHIR (2017) LPELR- 43272 (CA) Pages 7-8 Paragraphs F-C and FURFURI V. RAWAYYAH (2008) AFWLR (Part 401) (CA) Page 1000 at 1010 Paragraphs A-B and submitted that the Respondent is more favoured by the weight of evidence than the Appellant.
Counsel submitted that the lower Court was right when it set aside the decision of the Upper Sharia Court Tambuwal and urged this Court to resolve this issue in favour of the Respondent.
SECOND ISSUE
Counsel submitted that it is trite that when a Court raises an issue suo moto the parties should be heard before a decision is reached on the issue. He referred to ADENIJI V. ADENIJI (1972) 4 SC Page 10. According to Counsel, a Court can only be said to raise an issue suo moto if the issue does not exist in the litigation and citedIKENTA BEST (NIG) LTD V A.G. RIVERS STATE (2008) MSCQR Vol. 32 1074 at 1106. Counsel referred to Page 16 line 21 and Page 17 lines 1-3 of the Records where the Appellant representative before the trial Sharia Court stated that the land that the Appellant (Sodangi) revived belongs to him (the representative) and submitted that the lower Court was right to have held that the Appellant representative said that the Appellant had no land.
According to Counsel, the lower Court cannot be said to have raised suo moto the issue that the representative said the Appellant had no land. He referred to LEADERS AND COMPANY LTD & ANOR V. MUSA BAMAIYI (2011) MSCQR VOL. 46 Page 807.
Learned Respondent’s Counsel referred to Page 61 of the Record of Appeal where the lower Court held that none of the Appellant’s witnesses that testified before the trial Sharia Court were able to establish how or from whom the Appellant derived his title to the disputed land; and urged this Court to dismiss the Appeal.
DETERMINATION OF THE APPEAL
In determining this Appeal, I will adopt the twin issues for determination formulated by the Appellant which was adopted by the Respondent. Thus: –
a) Whether it was just and right for the lower Court to affirm the dismissal of the Appellant’s Claim
b) Whether the lower Court raised any issue suo moto without affording the parties the opportunity to address it on the issue raised.
The Claims of the Appellant who was the Claimant before the trial Sharia Court Tambuwal contained at Page 1 of the Record of Appeal reads: – ‘I, Alhaji Sodangi Gidan Bude sued Alhaji Abubakar Sharubutu Sanyinna before this Honourable Court because Ardon Sanyinna gave permission me to clear a farmland in Gidan Bude area, I and Alhaji Hussaini Gudun and Mallam Abubakar Gudun. After we have cleared the land, I put manure and harvested the land, I make the farm lively then Abubakar Sharubutu showed me power, he was the Vice Chairman then for Tambuwal local government, so now he is not in office that is why I sued him before this Court so that Court should collect my farmland situate at Gudun Bude, East bordered with Alkali Isah, West bordered with Street, South with Mallam Abubakar Gudun, North Alhaji Hussaini. That is my Claim.’
From the Claim of the Appellant it can be deduced that Ardo Sanyinna gave the Appellant permission to clear the disputed farmland in Gidan Bude which he did. That the Respondent who was then the Vice Chairman of Tambuwal local government used his office and took over the farmland from him. It is therefore clear that the disputed farmland is in the possession of the Respondent. The position under Islamic law where the property is in possession of another, the claimant is required to prove his claim by calling witnesses. If he fails to call witnesses, the defendant will be called upon to take the oath of rebuttal; but where the defendant has been in undisturbed possession for up to the period of Hauzi (prescription), the defendant will not be called upon to subscribe to the Oath of rebuttal. He may however be made to take the oath of judgment.. See KADA V. YAWA (1998) LPELR-1642 SC and IHKAMUL AHKAM Short Commentary on TUHFATUL HUKKAM Pages 262-263.
It is therefore the duty of the Appellant to prove and or show his entitlement to the reliefs sought.
To prove his claims, the Appellant at pages 4 – 11 of the Record of Appeal, called 7 witnesses. The Respondent who denied the claim called 5 witnesses. At page 18 of the Record of Appeal the trial Sharia Court held that :- ‘Out of the 7 witnesses, 6 of them did not bear witness to the Plaintiff..this Court ask the defendant to bring his witnesses he also claimed that Tambuwal Local Government gave him the land where he brought 11 witnesses but only 5 gave evidence who witnessed that Alhaji Abubakar Sharubutu applied for the farmland and he was given.Plaintiff’s representative did not succeed in impeaching witnesses 1 and 5 because witnesses numbers 1 and 5 were among the committee constituted by Tambuwal local government. The Plaintiff’s representative failed to mention his relationship with the defendant.
In Islamic law a witness gives evidence on what he has full knowledge of without any doubt.
See Fathu Aliyu Maliki Vol. 1 Page 204 which states: – “A witness is not competent unless he has sufficient knowledge…….”. Based on the above, I Ibrahim Abubakar Goronyo confer title/ownership of the farmland to Alhaji Abubakar Sharubutu which Alhaji Sodangi Gidan Bude sued him. I dismiss the claim of the Plaintiff because it has no basis under Islamic Injunctions from today 4/06/2014.” The Appellant dissatisfied with the decision appealed to Upper Sharia Court Tambuwal which set aside the Judgment of the trial Court and confer title to the disputed farmland to him as contained at Page 31 of the Record of Appeal.
The Respondent, dissatisfied with the Judgment of the Upper Sharia Court appealed to the High Court of Justice, Sokoto Appellate division (the Court below). At the conclusion of hearing the High Court in its appellate jurisdiction, allowed the Appeal and set aside the Judgment of the Upper Sharia Court Tambuwal and affirmed the decision of the trial Court delivered on 14/06/2014 as reflected at Pages 46-63 of the Records.
The lower Court at Page 61 of the Record of Appeal held: – ‘We agree with the learned counsel for the Appellant that none of the witnesses called by the Respondent testified as to how or from whom he derives his title to the landHis claim that he was given permission by the Ardon Sanyinna is not supported by any evidenceThe position of Islamic law as contained inTUHFATUL HUKKAM is:-
Translation: – ‘The burden of proof is on he who asserts’ Let me at this stage approach the Record of Appeal in order to determine whether the Appellant’s witnesses prove his title to the disputed land or not. The testimonies of PW1, PW2, PW4 and PW5 contained at Pages 4 – 7 of the Record reads: –
PW1 ‘I know this land because is bordered with my own farmland my own at North, his own at South and is the same year we cleared the farmland together I and Sodangi Gidan Bude and the farmland belong to Sodangi, he cultivated the farmland after plantation. Alhaji Abubakar sent him out of the farmland and the land continued to be with him till date and we cleared the farmland since 2007.’
PW2: – ‘What I know about this farmland in dispute between Alhaji Sodangi Alhaji Abubakar Sharubutu I know the place when it was bushy area, there was no sign of anybody’s work. So many years I passed there I saw Alhaji Abubakar clearing one portion of plot.
While Alhaji Sodangi and Dan Buga clearing another portion of the farmland. The next year I met the boys of Alhaji Sodangi cultivating the land. This is all I know.
PW4: – ‘What I know we requested this land and we were given.
We divided the land into three. I took two portions, he took one portion. We cleared the land. This is the first thing I knew. There was a year we did not cultivate the land. The next year we cultivated the land. This is all I know’
PW5: – ‘The place was bushy area; I was paid to clear it which I could not clear it alone. I took other people who helped me. We were burning the land and Alhaji Sodangi was cultivating the land. This is all I know.’
From the testimonies of the witnesses as reproduced above, it is clear that none of them mentioned the original founder of the land, how he founded it, the particulars of the intervening owners through whom the Appellant claims. It is trite that where a party has not given sufficient information as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See ANYAFULU & ORS V. MEKA & ORS (2014) LPELR 22336 SC and HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA & ANOR (1992) 5 SCNJ 90.
It is important to note that in the Claim of the Appellant before the trial Sharia Court he said Ardo Sanyinna gave him the permission to clear the farmland in dispute. Ardo Sanyinna is therefore a vital witness in establishing the claim of title of claim to the dispute farmland by the Appellant; however he was not called by the Appellant as one of his witnesses that testified before the trial Court. This is fatal to the Appellant’s case as the root of his title to the farmland is not established.
In accordance with Islamic law, in civil matters pertaining to both movable and immovable properties, the burden of proof is discharged upon evidence of two unimpeachable male witnesses, or evidence of one unimpeachable male witness and two or more unimpeachable female witnesses or more witnesses with Claimant’s oath in either case. See ABUBAKAR & ANOR. V. BASHIR (2017) LPELR 43272 (CA) Pages 7-8 Paragraphs F-C, HADA V. MALUMFASHI (2013) 1 SCQLR (Part 4) at Pages 24-26 Paragraphs F-B and BABA V. ARUWA (1986) 5 NWLR (Part 44) Page 774.
The issue for determination is whether the Appellant has met the above requirements in respect of the witnesses he presented before the trial Court or not. At Page 18 of the Record of Appeal the trial Sharia Court held: – ?Out of the 7 witnesses, 6 of them did not bear witness to the Plaintiff.? It is therefore clear from the Records that the Appellant did not meet the requirement of two unimpeachable witnesses to establish his claim of title to the disputed farmland before the trial Sharia Court.
The lower Court was therefore right when at Page 61 of the Record of Appeal it held that: – ‘none of the witnesses called by the Respondent testified as to how or from whom he derives his title to the land.’ The argument of the learned Plaintiff’s Counsel that the Appellant first settled on the farmland does not hold water.
Furthermore, the Respondent who is in possession of the disputed land need not to prove how he comes into possession.
See FALINGO V. FALINGO (2006) LPELR 5984 (CA) and the Book TABSIRATUL HUKKAM where it is stated that: ‘The person in possession shall not be asked to explain how the thing in his possession comes into his hands.’ The Respondent who is in possession called 5 witnesses out of which the trial Court believed 4 of them as is contained at Page 59 of the Record of Appeal. In FURFURI V. RAWAYYAH (2008) AFWLR (Part 401) Page 1000 at 1010 Paragraphs A-B this Court held that: – . Possession…is regarded or treated as evidence of one witness. Therefore, the Respondents are more favoured by the weight of evidence than the Appellant.’
The first issue is therefore resolved against the Appellant and in favour of the Respondent. As regards the second issue. The second issue is whether the lower Court raised any issue suo motu without affording the parties the opportunity to address it on that issue. It is trite that when a judge raises an issue on his own motion which is not before the Court he is said to raise it suo motu. See IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE (2008) MSCQR Vol. 32 1074 at 1106. The argument of the learned counsel to the Appellant is that the lower Court made reference to the statement of the representative of the Appellant before the trial Court in holding that the representative of the Appellant said the Appellant does not have any land.
The lower Court at Page 62 of the Record of Appeal held: –
‘The assertion of the representative of the respondent before the trial Court that he does not have a land is in our view an admission against his interest and where that is the case that evidence ought to be used against him. SeeTABSIRATUL HUKKAM note to Fathu Aliyu Malik Vol 2 Page 41 lines 9-17 where it is stated: –
‘Admission may be against one?s interest or another person’s interest or both. Simultaneously, if he makes admission against his interest he would not be allowed to retract it.’
The issue for determination is whether there was an admission by the representative of the Appellant before the trial Court that the farmland in dispute does not belong to the Appellant or not.
At Pages 16-17 of the Record of Appeal the Appellant?s representative before the trial Court during Izaar stated: –
‘…and Alhaji Sodangi was the one that revived the land that belongs to me in his Custody’…’It therefore follows that the lower Court did not raise the issue suo moto but it was evidence before the trial Court and I so hold. The second issue is therefore resolved against the Appellant and in favour of the Respondent.
The entire Appeal is unmeritorious and is hereby dismissed. I affirm the decision of the High Court of Sokoto State sitting in its Appellate jurisdiction delivered on 20th December, 2016.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour to read, in draft, the judgment of my learned brother A. M. Bayero, JCA just delivered I agree with the entire reasoning therein and the conclusion that the appeal is lacking in merit. It is accordingly dismissed.
I adopt the consequential orders made in the judgment
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading ‘the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, J.C.A. just delivered and I am in agreement with his reasoning and conclusions in disallowing the Appeal. I am also in agreement that the Appeal is lacking in merit and therefore fails and it is accordingly dismissed for want of substance. I abide by the consequential orders made by Court.
Appearances:
M. A. Sambo, Esq.For Appellant(s)
Ibrahim Abdullahi, Esq.For Respondent(s)
