BULAMA ALI BUKAR & ORS V. BULAMA MODU & ORS (2012)

BULAMA ALI BUKAR & ORS V. BULAMA MODU & ORS

(2012)LCN/5597(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of August, 2012

CA/J/171/2002

RATIO

FAIR HEARING: NATURE OF FAIR HEARING

It is however to be noted that the right to be heard is a fundamental and undisputed requirement of any judicial decision and non-compliance with these basic principles of fair hearing will nonetheless vitiate the trial. See Kotoye V. CBN ALL NLR 1989 page 76 especially at 78. PER PHILOMENA MBUA EKPE, J.C.A.

LAND LAW: REQUIREMENT OF A PARTY SEEKING TITLE TO LAND

Ogedengbe V. Balogun (2007) 9 NWLR (pt. 1039) 380
Adelusola V. Akinde (2004) 12 NWLR (pt 887) 295
Okocha V. Aninkwoi (2003) 18 NWLR (pt 851) 1. PER PHILOMENA MBUA EKPE, J.C.A.

APPEAL: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL MAKE AN ORDER FOR RE-TRIAL

In the case of Abusomwan V. Aiwerioba (1996) 4 NWLR (Pt. 441) @ 130 the Supreme Court held thus:

“An Appellate Court will make an order for re-trial of a case, where the re-trial will not lead to a miscarriage of justice, or where the Court, exercising its appellate jurisdiction, cannot adequately do justice to the case, or where from the circumstances of the case, it is just to make such an order.” PER PHILOMENA MBUA EKPE, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. BULAMA ALI BUKAR
2. LIGALI KYARIRAMBE
3. BULAMA BUKAR KYARIRAMBE
4. BULAMA FATE
5. KYARI KORE Appellant(s)

AND

1. BULAMA MODU
2. ALHAJI USMAN
3. USMAN BORNORAMBE
4. KOSHI ZARAMI
5. MOHAMMED MUSTAPHA Respondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Borno State High Court sitting in its appellate jurisdiction presided over by A.G. Mshelia J, with M.A. Biu assisting delivered on the 25th day of July, 2001.
Learned Counsel for the Appellant filed his brief of argument on the 17th May, 2004. The Respondents had however filed a motion on the 2nd April, 2003 for an order striking out this appeal for want of diligent prosecution. That motion was subsequently withdrawn and struck out on the 11th May, 2004. The Respondents have however not filed any brief of argument hence this court decided due to the circumstances of the case and the security situation in the country, to hear the appeal based on the Appellant’s brief alone. The record of appeal was however transmitted on the 5th July, 2002.
The brief facts of the case are that the Appellants as Plaintiffs instituted an action V. the Respondents as Defendants at the MOBBAR Area Court for a claim of land. At the close of proceedings judgment was entered in favour of the Plaintiffs/Appellants. The Defendants /Respondents being dissatisfied appealed to the Kukawa Upper Area Court where the judgment of the trial Area Court was affirmed.
The Defendants/Respondents being further aggrieved by the decision of the Upper Area Court appealed to the Borno State Sharia Court of Appeal which allowed the appeal and ordered a re-trial. The Plaintiff/Appellant being dissatisfied with the decision of the Sharia Court of Appeal, appealed to this Court which allowed the appeal and ordered a re-trial before the High Court of Justice, Maiduguri sitting in its appellate jurisdiction to entertain the appeal being a land matter. The High Court then heard the appeal and ordered a re-trial before the Upper Area Court, Kukawa to be presided over by another Judge. Being again dissatisfied with the aforesaid judgment, the Appellants with the leave of the High Court appealed against the judgment to this Court. The Appellants filed their notice and grounds of Appeal on the 16th January, 2002 containing eight grounds of appeal. See page 29 of the record. The grounds of appeal are for ease of reference reproduced hereunder:
GROUND ONE
The decision/judgment of the lower court is against the weight of evidence.
GROUND TWO
The learned Judges of the Borno State High Court erred in law, when it held thus:
“However where the facts of the case show that each party is a plaintiff in his own case, each will be entitled to call witnesses to prove his case.”
PARTICULAR OF ERRORS
1. The subject matter or the plaintiffs/respondents claim before the trial court is the same and having sued as joint plaintiffs were not bound to prove their case separately.
2. There was cogent and credible evidence in favour of the plaintiffs/respondents claim before the trial court as there was no other evidence required by the defendants/appellants.
3. The court did not make a finding whether the evidence of the witnesses before the trial court was not cogent and unimpeadable.
GROUND THREE
The learned Judges of the Borno State High Court erred in law by relying on the case of Kotobe – V – Central Bank of Nigeria conclude that the respondents were not given fair hearing.
1. The subject matter or the claim of the plaintiffs and the appeal before the High Court is governed by Islamic law.
2. The application of the rules of fair hearing under Islamic law and that envisaged in the decision relied upon differs both in scope and nature.
3. The appellants were not denied fair hearing in view of the decision in the case of Minter – V – Kori.
4. The defendants were asked to bring witnesses to testify for them at the close of the plaintiffs’ case, but said they do not have witnesses. The court further gave them two weeks to do so.
5. The defendant on the adjourned date did not come with any witness but stated on their own that they have witness from Niger republic but the court will not accept it. But the issue of a witness from Niger which will not be accepted by the court is not borne out by evidence and not in the printed record or forms part of the Proceedings.
GROUND FOUR
The learned Judges of the Borno State High Court erred in law by holding that the trial Judge did not apply the principles of Hauzi correctly.
“On the issue of Hauzi looking at the record of proceedings of the trial Area Court, it is evident that the trial Judge did not apply the principles correctly. The appellants claimed that they have been in quiet undisturbed possession of the area of land in dispute for a period of 300 years.”
This has occasioned a miscarriage of justice.
PARTICULAR OF ERRORS
1. There is nowhere in the record of the trial court that, the defendant states that, they have been in possession for 300 years.
2. It was the Pw II who states that, the plaintiffs have been in possession for over 300 Years.
3. The defendant before the trial court admitted that, the land in dispute belongs to the plaintiffs but have settled on the land for a long period and as such are there-fore entitled to where their Houses are and their various form lands.
4. Apart from stating that they have been on the plaintiffs land for long period, the defendant did not adduce further evidence before the trial court and it is trite that the issue of Hauzi is a matter of evidence.
5. No evidence was red by the defendants at the trial Area Court and the appellant Upper Area Court Kukawa as to the number of years the defendant/respondents were in possession of the land in dispute.
GROUND FIVE
The learned Judges of the Borno State High Court erred in law that, the defendant/appellant were not given fair hearing since they have witnesses from Niger republic but the court did not allow the witness to testify.
“It is clear from the translated version of the record of proceedings of the trial court particularly page 5 lines 10 – 17 that defendants had witnesses but the court did not allow them to call the witnesses on the ground that a person from Niger Republic cannot testify. The court did not give any reason for holding such view.”
This has occasioned a miscarriage of justice.
PARTICULARS OF ERRORS
1. That defendants were given the opportunity to call witnesses but said they did not have any.
2. The court further gave them two weeks to bring witnesses but it was the defendants on their own who stated that they have witnesses from Niger which was not accepted by the court.
3. The issue of having a witness from Niger but will not be accepted by the court cannot be found anywhere in the proceedings of the trial court, it is not borne out by evidence.
4. The defendants were given the opportunity to call witnesses to the effect that, they were descendants of Ya Gumsu but fail to do so.
GROUND SIX
The learned Judges of the Borno State High Court erred in law by holding that, both the plaintiff and the defendant before the trial court were claiming ownership of the land in dispute.
“The plaintiffs/respondents are claiming ownership of the land in dispute. Defendants/appellants are in possession and similarly claiming ownership.”
PARTICULARS OF ERRORS
1. The plaintiffs claim before the trial court was for their Ngabar originating land.
2. The defendant admitted settling on the land of the plaintiffs but are entitled to a specific portion where their Houses are and their respective farm land within the (Neabar) originating land of the plaintiffs.
3. And the trial court confirmed same to the defendant on the long possession pleaded based on the Islamic law principle of Hauzi
GROUND SEVEN
The learned Judges of the Borno State High Court erred in law by holding that, the issue of the identity of the land in dispute was raised and covered by their grounds No. 3 and 5 of the defendants notice and grounds of appeal argued before the court.
“The identity of the area of land in dispute is the next issue to be resolved. Contrary to the submission of the respondents’ counsel this issue was raised by the appellants in grounds No. 3 and 5 of the appeals as such it is not a new issue.”
PARTICULARS OF ERRORS
1. The issue of the identity of the land in dispute does not form part of their appellant Grounds of Appeal either grounds No. 3 and 5.
2. The issue of the identity of the land in dispute was raised by the learned Judges of the Borno State High Court suo motu.
3. The court fails to call upon us to address it on same.
4. Ground No. 3 of the appellant before the High complained of the plaintiff failure to prove their case. And ground No. 5 complained of the trial court’s failure to decide on the right of the portion.
GROUND EIGHT
The learned Judges of the Borno State High Court erred in law by holding that, the judgment of the trial court is against the weight of evidence.
“It is also evident that judgment of the trial court is clearly against the weight of evidence.”
This has occasioned a miscarriage of justice.
PARTICULARS OF ERRORS
1. The plaintiffs have proved their case before the trial court by calling three witnesses who testified credibly in favour of their claim.
2. The defendant themselves admitted that, they settled in the Ngabar (originating land of the plaintiffs but said they are entitled to where their Houses are and their farm lands within the plaintiff land.
3. Having admitted to be settled on the plaintiffs land, the plaintiff need not even to call witnesses to prove their claim, but called three witnesses who testifies in favour of the plaintiffs claim.
4. The issue of the defendants to be given oath does not even arise under Islamic law having admitted the plaintiffs claim.
The Appellants then formulated 4 issues for determination to wit:
1. Whether the Defendants/Respondents were denied fair hearing by the trial court.
2. Whether the Appellants proved their case and were entitled to judgment.
3. Whether the Islamic Principle of Hauzi was properly applied.
4. Whether the High Court was right to have interfered or disturbed the concurrent findings of fact of the trial and Upper Area Courts.
ISSUE NO. ONE
Whether the Defendants/Respondents were denied fair hearing by the trial Court, learned counsel for the Appellants submitted that the Defendants/Respondents were given fair hearing. He then referred to page 7 of the printed record where the trial Court ordered the Defendants/Respondents to produce their witnesses and went further to adjourn the matter to enable them produce their witnesses. That the appellate High Court could not justify the decision that the Defendants/Respondents were not allowed to call their witnesses by reason of the fact that the said witnesses came from Niger Republic.
Learned counsel concluded that there is nothing on record to show that the Defendants/Respondents brought witnesses to Court and same were denied hearing on the ground that they hailed from Niger Republic. He further concluded that in the absence of this crucial fact, the position of the High court is therefore speculative and unfounded.
On the issue of fair hearing, the salient question is: were the Defendants/Appellants given the opportunity to call their witnesses? The High Court founded that the Plaintiffs in the Upper Area Court called 3 witnesses while at the close of the plaintiff’s case, the Defendants were also asked to produce their witnesses to support their case. The High Court held thus:
“It is clear from the translated version of the record of proceedings of the trial Court particularly page 5 lines 10 – 17, that the defendants had witnesses but the court did not allow them to call the witnesses on the ground that a person from Niger Republic cannot testify. The court did not give any reason for holding such view.”
I have however carefully perused the judgment of the Upper Area Court KUKAWA delivered by Alkali Baba Gana Ibrahim on the 23rd of July, 1992. I have also gone through the proceedings and judgment of the Area Court delivered on the 4th June, 1992 by Adamu IDRIS LARISKI. The Defendants in the Area Court had been asked by the court if they had witnesses to testify on their behalf and the defendant had replied that he had witnesses but that the court had earlier stated thus “a person from Niger Republic cannot testify.” There was no further comment from the Area Court and the assumption is that the defendant was not allowed to call his witnesses who presumably were from Niger Republic. The upper Area Court however confirmed the decision of the Area Court and in the words of the Judge.
“I went through the copy of proceedings of the Mobbar Area Court and I found that what the Area Court did was correct and I have no reason to interfere.”
The decision of the Area Court was affirmed by the upper Area Court. The High Court was therefore right in holding that the Defendants/Appellants ought to have been given the opportunity to call their witnesses albeit from Niger Republic. The High Court further held that since the Appellants have the right to call witnesses as per the Supreme Court decision in Usman v. Kusfa (1997) 1 NWLR (Pt 483) page 525 at 534 the trial court did not grant fair hearing to the Appellants.
It is however to be noted that the right to be heard is a fundamental and undisputed requirement of any judicial decision and non-compliance with these basic principles of fair hearing will nonetheless vitiate the trial. See Kotoye V. CBN ALL NLR 1989 page 76 especially at 78. The issue of fair hearing has thus arisen because the Defendants in the trial Court had categorically stated that they had witnesses to call who hailed from NIGER REPUBLIC. No reason was proffered for that denial by the trial Court. From the totality of all the reasoning and conclusions herein above stated, issue No. 1 is therefore resolved in favour of the Respondents.
ISSUE NO. TWO:
Whether the Appellants proved their case and were entitled to judgment.
Appellant’s counsel submitted that they proved their case as required by Islamic Law. That the Appellants called three witnesses who testified in their favour and that the testimony of these witnesses was not controverted but rather their testimony was confirmed by both the trial court and the Upper Area court. He then referred to the case of Mallarima Kalli Mintar v. Alhaji Bukar Kori (1989) 1 NWLR (Pt. 100) 718 @ 723 where the Court held thus:
“Under the procedure in Islamic Law, once the Party asserting has perfected the proof of his case in accordance with Islamic Law procedure there is no further discretion left to the Judge than to enter judgment for that party. If the Defendant and his witnesses gave evidence, such testimony will not be relevant.”
He also referred to the judgment of the Upper Area Court at pages 13 – 14 of the Record. He again reiterated the fact that the Appellant called 3 adult witnesses who gave useful and meaningful evidence. Counsel concluded that the Respondents were given the opportunity to produce their witnesses and that they in turn informed the Court that they had no witnesses.
I shall adopt the argument canvassed by the High Court and the decision arrived therein in issue No. One. The Defendants/Appellants were never given an opportunity to call their own witnesses since the Area Court held that the said witnesses were not indigenes and hailed from Niger Republic. I will hasten to add that the twin pillars of Fair Hearing and natural justice had been breached by that decision of the Area court and also Section 36 of the 1999 Nigeria Constitution. The Appellants were thus not entitled to judgment in the light of the above, I hereby resolve Issue No. 2 in favour of the Respondent against the Appellants.
ISSUE NO. THREE
Whether the Islamic Law Principle of Hauzi was properly applied.
Learned counsel for the Appellants submitted that there is abundant evidence on record of the trial Court to show that the Plaintiffs/Appellants had settled on the land in dispute for a long time and that they even built houses on the said land undisturbed by anyone. He cited Ashalul Madarik Vol. III page 236 thus:
“He who over-sees another person laying and claiming ownership of his property and also exercising acts of ownership over the same for a long period with no impediment for challenging the claimant, his complaint will not be entertained thereafter.”
Counsel again stated that the facts of the present appeal shows clearly that Defendants/Respondents were quite aware of the adverse possession of the Plaintiffs/Appellants who had been exercising acts of ownership over their farm lands by building their homes therein. That the onus of proving the existence of the exceptions to the application of the docrine of Hauzi lies on the Defendants/Respondents and that may have failed to discharge the burden as required by law. He concluded that the Area Court and the Upper Area Court were right in deciding in favour of the Plaintiffs/Appellants. To buttress this fact he cited the following cases.
1. Hamadu Huhare V. Yaya Nana (1996) 1 SCNJ 135 @ 1432 – 144
2. Shuaibu Ibrahim V. Nasidi Abubakar (1961) LRN Vol. 1 page 77 @ 78-79.
The doctrine of HAUZI in Islamic parlance and law is that of a long and undisputed possession of the land by the claimant. I shall however endeavour to reproduce part of the judgment of the High Court which relates to the issue of HAUZI.
“On the issue of Hauzi, looking at the record of proceedings of the trial Area Court, it is evident that the trial Judge did not apply the principles correctly. The appellants claimed that they have been in quiet undisturbed possession of the area of land in dispute for a period of 300 years.”
The learned Judges of the High Court held that there is no evidence on record to show that the trial Judge looked into the possibility of the application of the exceptions to the general principles of Hauzi before arriving at his decision. The High Court held that there was need to properly resolve the issue of Hauzi. I agree entirely with the decision of the High Court that there is indeed need to cast a second look at the issue of Hauzi together with the exceptions as stated herein before reaching a final decision on that issue. I therefore resolve this issue in favour of the Respondents.
ISSUE NO. FOUR
Whether the High Court was right to have interfered or disturbed the concurrent findings of fact of the trial and Upper Area Courts.
It is learned counsel’s submission that the High Court wrongly interfered with the findings of fact of the trial and Upper Area Courts. That it had not been shown that the findings of fact are credible, cogent and compelling evidence on record. Counsel further submitted that it was clear from the printed record that the identity of the land was not in dispute between the parties. That it was speculative on the part of the appellate High Court to hold that the identity of the land in dispute was not properly ascertained or proved. That there was evidence that the Plaintiffs/Appellants called three witnesses to prove their claim while the Defendants/Respondents did not call any witness despite the opportunity given to them to do so. Counsel further submitted that the Upper Area Court affirmed this position and held that Plaintiffs/Appellants duly proved their case and were thus entitled to judgment. That in the absence of compelling evidence, the Appellate High Court ought to have shown utmost restraint and rejected any temptation to interfere with the concurrent and findings the fact of the trial and Upper Area courts. He then urged the court to allow the appeal and to set aside the judgment of the Appellate High court while affirming the decision of the Area and Upper Area Courts.
No doubt, the need for the High Court to interfere with the findings of fact of both the Area and upper Area courts will arise if it is shown that the findings of fact in the said courts are perverse and not supported by credible, cogent and compelling evidence during trial.

In a claim for declaration of title to land, it is the requirement of law that the party seeking title to land must as a matter of necessity establish the identity of the land with definitive certainty and clarity. A plaintiff seeking a declaration of title to land, has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no court would be obliged to grant title to an unidentified land. There must also be credible evidence describing and identifying the land with certainty. See the reference cases:
1. Ogedengbe V. Balogun (2007) 9 NWLR (pt. 1039) 380
2. Adelusola V. Akinde (2004) 12 NWLR (pt 887) 295
3. Okocha V. Aninkwoi (2003) 18 NWLR (pt 851) 1.
The Judge of the High Court clearly stated in her judgment that she had perused the translated version of the record of proceedings of the Area court of Mobbar and that going by the particulars of claim, the plaintiffs merely stated that the people of Aru encroached on their land and cleared it. In the words of the High court Judge:
“There is nothing on record to show the boundaries and clear identity of the area of land in dispute. It is material to establish a clear identity of the area of land in dispute so as to avert future litigation over the same piece of land.”
There is however no gainsaying the fact that where boundaries are uncertain, right of ownership ought not to be granted. The identity of the area in dispute must be clearly and properly ascertained.
It is to this extent that the High Court adjudged that the Upper Area Court Judge did not decide the rights of the parties. That the Upper Area Court merely affirmed the decision of the trial Area Court without giving cogent or any reasons at all why the decision of the trial Area Court was affirmed by the Upper Area Court. The High Court concluded that judgment of the trial court was clearly against the weight of evidence.
It is my humble view that the Appellate High Court rightly interfered with the findings of fact of the Area and Upper Area Courts. The reasons have before now been clearly stated. The trial Court had failed to investigate the issue raised with regard to boundaries of the land in dispute and this, I agree, has greatly caused a miscarriage of justice. The High Court sitting in its appellate jurisdiction is entitled to evaluate the evidence and possibly reject the conclusions of the trial Judge from facts which do not flow from the evidence or may be regarded as perverse. I agree that the High Court was right in reaching such a decision by ordering a re-trial of the matter in the Upper Area Court.
In the case of Abusomwan V. Aiwerioba (1996) 4 NWLR (Pt. 441) @ 130 the Supreme Court held thus:
“An Appellate Court will make an order for re-trial of a case, where the re-trial will not lead to a miscarriage of justice, or where the Court, exercising its appellate jurisdiction, cannot adequately do justice to the case, or where from the circumstances of the case, it is just to make such an order.”
Based on the various reasons stated herein above, it is my humble view that this appeal is lacking in merit and ought to be dismissed. Accordingly this appeal is hereby dismissed and the judgment of the High Court presided over by A.G. Mshelia is affirmed.
The order for re-trial before the Upper Area Court by another Judge is affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft the Judgment delivered by my learned brother, Ekpe, J.C.A. I agree with it and for the reasons which he has given, I also dismiss it. I abide by the consequential orders.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Philomena Mbua Ekpe, JCA. She has admirably, painstakingly and satisfactorily resolved all the issues that have arisen in the instant appeal.
I agree with the reasoning and conclusion that the appeal lacks merit and it ought to be dismissed. I also dismiss the appeal. Similarly, I abide with the consequential orders made in the said lead judgment.

Appearances

J. T. Gunda Esq.For Appellant

AND

No brief filed by the Respondent.For Respondent