DANKUNDI v. DANKUNDI
(2022)LCN/16368(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, May 13, 2022
CA/K/467S/2017
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ALH. ADAMU GARBA DANKUNDI DA YAN UWANSA APPELANT(S)
And
ALH. AHMAD GARBA DANKUNDI RESPONDENT(S)
RATIO:
THE ELEMENTS OF A CAUSE OF ACTION
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382 – 383:
“when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”
Finally, in the recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as: “a cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.” MOHAMMED BABA IDRIS, J.C.A.
THE COURT CANNOT RELY ON EVIDENCE OUTSIDE THE RECORD OR ON EVIDENCE IT MAY BE AWARE OF BUT NOT DISCLOSED ON RECORD
Also, in the case of GARBA BADAJI VS. MAMMAN KUWARA (SUPRA), it was held that:
“The law is trite that under the sharia as it is in the common law, judgment of a Court must be based on evidence given by witnesses which may include documentary evidence. Such evidence must be the legally admissible and disclosed evidence on record. It must not be evidence outside the record or evidence shrouded in mystery. The Court cannot rely on evidence outside the record or on evidence it may be aware of but not disclosed on record. In the case of IBRAHIM V SHAGARI (1983) ALL NLR 507 the apex Court held thus:
“Although it seems fairly obvious it needs emphasis that Courts of law decide issues in controversy between parties on the basis of the evidence before them. It would be invidious if it were otherwise.”
Similarly, under Islamic law, the judge basis his judgment on evidence adduced by witnesses. In the book of IHKAMUL AHKAM page 14 it is stated as follows:
“the judge depends on evidence of witnesses in giving judgment.”
In the instant case, the Appellant made no attempt to tender any evidence before the trial Court, either by calling credible witnesses or tendering of any documentary evidence. The Appellant merely stated his claim and left it lazily at that. Even when the Respondent had argued that the land in question was within six kilometers radius from the center of Hadejia Local Government, the Appellant did not provide any evidence at all to prove otherwise. MOHAMMED BABA IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By Case No. CV/37/2014, the Appellant and his brother had brought a claim against the Respondent before the Upper Sharia Court, claiming that a house and a farm in his possession actually belonged to their late father. The Appellant had stated that it was a case for distribution of estate of his late father.
The Respondent claimed that he had a certificate of occupancy to the farm bearing the name of one Alh. Yahaya Dan Batalle issued about 30 years ago and that he had in fact used it as a collateral when he collected loan from Sterling Bank with the name of Dan-Kudi Nig. Ltd Co. The said Alh. Yahaya Dan Batalle was named as a director in Dan-Kudi Nig. Ltd Co. The Appellant however claimed that this assertion was wrong as he was sure his father never sold the land.
The Respondent through his counsel, argued that the Upper Sharia Court had no jurisdiction to hear the matter since it was clearly a case of possession of land and not distribution of property as claimed by the Appellant. The Respondent produced a sale agreement showing that he indeed bought the land from Alh. Garba Dankundi on the 21st of April, 1993 for the sum of N50,000. The Respondent’s counsel also submitted that there was a judgment obtained in respect of the land from a High Court in Jigawa State, directing the Respondent to auction the farm and pay the debt he owes Sterling Bank.
While delivering its judgment, the Upper Sharia Court held that the Court had no jurisdiction to hear the matter as there was a valid and subsisting judgment of a High Court of Jigawa State giving order for the said land to be auctioned. Also, it held that there was a claim of possession in respect of the house and that the Court had no jurisdiction to hear the case. The matter was then dismissed.
Dissatisfied with the judgment of the Upper Sharia Court, the Appellant appealed to the Sharia Court of Appeal on the following grounds of appeal:
(1) The Upper Sharia Court was in error after the Plaintiff mentioned his claim and he was not asked to produce death and relationship witnesses.
(2) The Upper Sharia Court was wrong to have held that it had no jurisdiction to hear the case as it was a case of distribution of estate and not possession.
(3) The Upper Sharia Court was in error to not have relied on authorities in arriving at its decision.
(4) The judge said his judgment without alloctus.
While delivering its judgment, the Sharia Court of Appeal held that the Upper Sharia Court was right as it was clearly a case of possession and not distribution of estate. It was further held that it would have been a waste of time if the Upper Sharia Court had told the Appellant to produce death and relationship witnesses to ascertain the heirs of the late person and if indeed the property in issue belonged to the late person. The judgment of the Upper Sharia Court was affirmed and the appeal was dismissed.
Still clearly unhappy and dissatisfied with the judgment of the Sharia Court of Appeal, the Appellant then filed a Notice of Appeal before this Court on 3 (three) grounds of appeal.
The Appellant’s counsel has filed the Appellant’s brief of argument dated the 26th day of September, 2017 and settled by A. G. Wakil Esq., in the said Appellant’s brief, a sole issue for determination was distilled as follows:
Whether the learned Kadis of the lower Court were right when they affirmed the decision of the trial Court.
The Appellant has stated that one of his grouse against the decision of the lower Court was that it affirmed the decision of the trial Court which was reached without any iota of evidence.
It was submitted that there was no evidence adduced before the trial Court to show that the house and farm in connection were within 6 kilometers radius from the center of Hadejia Local Government but merely relied on the submission of the Respondent’s counsel and thus, any decision of the Court that was not predicated on evidence adduced is liable to be set aside on appeal. Reference was made to the case of OSADIM VS. TAIWO (2010) ALL FWLR (PT. 534) PAGE 146 and WUDIL VS. WUDIL (2014) SQLR PART IV PAGE 595 AT 601.
Secondly, the Appellant has argued that the record of proceedings did not disclose that the purported instrument designating lands as urban and rural in Jigawa State was shown to either the trial Court or the lower Court, thus it would mean that the Court merely relied on the submissions of counsel. It was further submitted that it is elementary law that no matter how brilliant the submission of counsel is, it cannot take the place of evidence. Reference was made to the case of AJAYI VS. TOTAL (NIG) PLC (2014) ALL FWLR (PT. 719) PAGE 1060.
The Court was then urged to allow the appeal and set aside the judgment of the two lower Courts.
The Respondent’s counsel on the other hand, filed the Respondent’s brief of argument which was deemed on the 5th day of July, 2021 and settled by Garba Abubakar Esq. In the said Respondent’s brief, a lone issue for determination was distilled as follows:
Whether considering the express admission made by the Appellant that the subject matter referred to as Gonar Tsamiya was covered by Certificate of Occupancy dated 1983 and has some encumbrances and the fact that property GidanBulo is situated at Hadejia town, the trial Court was right to have dismissed the Appellant case; and if the answer is in the negative; whether the trial and the lower Court were right in dismissing the claim?
The Respondent’s counsel has argued that considering the series of admission by the Appellant before the trial Court, the trial Court was right in dismissing the case for lack of jurisdiction and also that the claim was not firm enough to stand.
It is the Respondent’s argument that the Appellant’s argument in his brief of argument constituted a complete departure from the Appellant’s claim bordering on the issue of title which cannot help the Appellant in any way. It was also submitted that the Appellant’s counsel made no attempt to debunk or deny the facts which needed his response but rather, he admitted it as it is a trite principle of law that silence connotes acceptance.
It was submitted that facts admitted need not be proved. Reference was made to the cases of SALAMI VS. AJADI (2012) ALL FWLR (PT. 615) PAGE 242 and SANYA VS. SAUMAM (2012) ALL FWLR (PT. 618) PAGE 917 AT 921.
The Respondent’s counsel further submitted that even though he was not obligated by law to tender documents such as the certificate of occupancy and the sale agreement, they still tendered it.
The Respondent’s counsel also submitted that the trial Court is not duty bound to comply with all the rules of tendering documents applicable in English Courts as every Sharia Court’s duty is to do substantial justice and not dwell on technicalities.
The Respondent’s counsel also submitted that the trial Court was right in dismissing the claim without reference to the Appellant’s admission as the claim of the Appellant never stood a chance. It was submitted that a valid claim must meet two conditions i.e. a succinct claim and an explanation.
It was submitted that the Certificate of Occupancy had been issued in the name of the third party for more than 30 years.
The Court was then urged to dismiss the appeal and affirm the decision of the lower Court.
The Appellant’s counsel filed a Reply on Point of Law deemed the 5th day of July, 2021 and settled by A. G. Wakil Esq.
The Appellant’s counsel has argued in response that the mere fact that one of the lands in dispute is covered by a Certificate of Occupancy does not necessarily imply the land is in the urban area. Counsel further submitted that under the Land Use Act, even lands in rural or non-urban areas can still be covered by Certificate of Occupancy. Reference was made to Section 9 of the Land Use Act.
Counsel also argued that the admission to the fact that the land in issue is covered by a Certificate of Occupancy does not in any way contemplate an admission that the land is within urban area.
The Appellant’s counsel has further argued that an admission to the fact that the other land in dispute is located at Hadejia KofarGari does not in any way consider the land to be in an Urban Area of Jigawa State. Also, the Appellant’s counsel has argued that whether the land is in an urban area or not is inconsequential and immaterial since the issue before the Court is for estate distribution.
It was also argued that the Respondent’s counsel’s argument that silence is acceptance under Islamic law is wrong because even if the Appellant failed to respond to the assertion that the lands in dispute are within the urban area of Jigawa State, the above principle will not apply as its application is only when the silence is in what must be responded to as the Appellant is not in the position to know whether or not the lands in dispute are within the area designated as urban area.
Finally, the Appellant’s counsel submitted that the Respondent’s counsel was wrong to have relied on authorities not applicable to Sharia cases which include the book of “Bulughul Maram” as well as cases based on provisions of the Evidence Act which is not applicable in lower Courts by virtue of Section 256(1) of the Evidence Act 2011.
RESOLUTION OF ISSUES
Having read the Record of Appeal and summarized the arguments of the parties herein as contained in their respective Briefs of Argument, I shall now proceed to consider the issues submitted by the parties herein and in doing so, I will adopt the issue for determination raised by the Appellant herein. The issue again is reproduced hereunder as follows:
Whether the learned Kadis of the lower Court were right when they affirmed the decision of the trial Court.
I have read the record of appeal particularly pages 16 – 25 thereof which clearly showed the claim of the Appellant at the trial Court. It is trite law that for a Court to determine what the cause of action is in a suit, it must look only at the statement of claim.
In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) PAGE 546, it was held that: “in determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.”
The Stroud’s Judicial Dictionary 4th Edition, defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR (PT. 304) PAGE 128 AT 136, it was held that:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382 – 383:
“when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligation exists side by side, a cause of action is said to have accrued.”
Finally, in the recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as: “a cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.”
Since there is no Statement of Claim in this case, we must pay close attention to the statement of the Appellant when the matter was instituted before the trial Court.
At pages 17 – 18 of the Record of Appeal, the following were stated:
CT: Plaintiff who can speak on your behalf?
Ans: Alh. Ahmadu can speak on our behalf we have agreed on that.
CT: Defendant counsel they said their lawyer is on his way and he told them to give a notice to the Court to continue with case (sic), what is your take?
Ans: Its Ok. I have no objection.
CT: Plaintiff Alh. Ahmadu and others, what is your claim?
Ans: We have sued the Defendant how he owed (Gonar Tsamiya) farm in issue plaintiff the farm in issue in under whose possession? (sic). Originally, the farm belongs to our father but its under the possession of Alhaji.
CT: Plaintiff why you sue the Defendant since the farm was not under his possession
Ans: the Defendant did a certificate to the farm and he possessed it since Kano state, he also collected loan from Sterling Bank with the name of Dan-Kudi Nig. Ltd Co?
Ans: It belongs to Defendant.
CT: Plaintiff- In which year he register the farm?
Ans: Since 1987
CT: Plaintiff on (sic) that time Alh. Garba your father is alive?
Ans: Yes he is alive.
CT: Plaintiff did he did (sic) anything in that respect?
Ans: He tried to sell the farm at that time.
CT: Plaintiff you saidthat the name on the certificate was not the name of the defendant, on whose name (sic) the farm registered?
Ans: It the name of Alh. Yahya Dan Batalle who is his boy. The certificate was issued 13yrs ago.
CT: Plaintiff your father is aware of the farm register?
Ans: He knows later.
CT: Plaintiff after the certificate did the farm has (sic) any document?
Ans: There is not, he inherited it from his father. The farm and its boundaries.
Ans: Yes, it is situated along Kano road, near Kaduna village, its boundaries are from East-Petroleum Station, West Dan-Misaja, South Road and North-Alhaji Kani.
CT: Plaintiff is there any trees in the farm?
Ans: Yes, it was fenced. Tamnine. Tree and well.
CT: Plaintiff the remaining plaintiffs are all aware of this case?
Ans: Yes (they have answered all)
From the above stated, it is clear that the Appellant’s claim against the Respondent is over ownership and possession of land. When the Appellant was given ample time and opportunity to state his claim against the Respondent, there was no single part of his statement that indicated that his claim bothered on distribution of estate which he later stated was his claim on page 21 of the Record of Appeal.
At page 21 of the Record of Appeal, the Appellant stated as follows:
CT: Plaintiff did you have anything to say?
Ans: Yes. As the defendant counsel said this Court has no jurisdiction on this case, he didn’t understand the claim is not for possession is for distribution of estate which this Court has jurisdiction to hear whether the property to be distributed was located at urban area or journal area with certificate of occupancy or not as per as is within the jurisdiction of the Court. This is Upper Sharia Court which its jurisdiction cover whole Jigawa State not even Hadejia Jigawa state.
Section 41 of 1978 Constitution of FRN given power to Sharia Court to entertain cases of such nature. We are not doing possession he has mentioned in many places. As such if he has transaction witness, let him produce them we also produce our witnesses that the farm and house are among estate property. See 39 is on possession and we are claiming distribution of estate i.e (Gonar Tsamiya) and (Gidan Bulo) because we inherited them from our father building carried out after the sell transaction of Gidan Bulo if he go there, there is no remaining plot now, if the Court so wish to see.
The Appellant kept maintaining that his claim was for distribution of estate and not possession or ownership of title to land. However, did he (Appellant) provide enough evidence before the Court to be entitled to the grant of his claim?
In the case of GARBA BADAJI VS. MAMMAN KUWARA (SAGE) (2018) LPELR – 46600 (CA), it was held per Wambai JCA that:
“the next fundamental duty of Court is to determine whether the claim meets the basic requirements of (1) being definite, specific and categorical and (2) explanatory. The claim should be clear and free of any ambiguity of what is being claimed and the quantity claimed, its location and an explanation of how the claim arose.”
Also, in the case of GARBA BADAJI VS. MAMMAN KUWARA (SUPRA), it was held that:
“The law is trite that under the sharia as it is in the common law, judgment of a Court must be based on evidence given by witnesses which may include documentary evidence. Such evidence must be the legally admissible and disclosed evidence on record. It must not be evidence outside the record or evidence shrouded in mystery. The Court cannot rely on evidence outside the record or on evidence it may be aware of but not disclosed on record. In the case of IBRAHIM V SHAGARI (1983) ALL NLR 507 the apex Court held thus:
“Although it seems fairly obvious it needs emphasis that Courts of law decide issues in controversy between parties on the basis of the evidence before them. It would be invidious if it were otherwise.”
Similarly, under Islamic law, the judge basis his judgment on evidence adduced by witnesses. In the book of IHKAMUL AHKAM page 14 it is stated as follows:
“the judge depends on evidence of witnesses in giving judgment.”
In the instant case, the Appellant made no attempt to tender any evidence before the trial Court, either by calling credible witnesses or tendering of any documentary evidence. The Appellant merely stated his claim and left it lazily at that. Even when the Respondent had argued that the land in question was within six kilometers radius from the center of Hadejia Local Government, the Appellant did not provide any evidence at all to prove otherwise.
I am surprised that the Appellant based this entire appeal on the failure of the Respondent to prove that the land in issue was within 6 kilometres radius from the center of Hadejia Local Government. Is that the crux of the entire case? Is that the fundamental claim in the suit that gave rise to this appeal?
The Appellant kept maintaining that the case is that of distribution of estate yet he brought an action against another person who was not even in possession of the said land. The said land had been in possession of one Alh. Yahya Dan Batalle.
The Appellant led no evidence to prove that the land belonged to his late father or was part of his late father’s estate.
The land had been registered in the name of another person for a very long time. How do we overlook all these and say this indeed is a case of distribution of estate suit?
I agree with the judgments of the two lower Courts and I affirm same. In the circumstances, it is my considered view that this appeal is unmeritorious and it is hereby dismissed. I make no further orders as to cost.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with his reasoning and conclusion that the appeal is unmeritorious and should be dismissed.
I dismiss the appeal and award no cost.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, MOHAMMED BABA IDRIS, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
Y. Salisu, Esq. For Appellant(s)
M. Abubakar, Esq. For Respondent(s)
