DIDOGA v. KARAMU (2020)

DIDOGA v. KARAMU

(2020)LCN/14550(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Wednesday, August 05, 2020

CA/S/120/2018

RATIO

PLEADINGS: RECORD OF APPEAL

It is settled law that the record of appeal is the only document which is relied upon by appellate Judges when deciding appeals and in finding out what transpired in the trial Court. See OMOKUWAJO VS FRN (2013) 9 NWLR (pt.359) 300; NITEL LTD VS IKPI (2007) 8 NWLR (pt. 1320) 396 and FORTUNE INT`L BANK PLC VS CITY EXPRESS BANK LTD (2012) 14 NWLR (pt.1319) 86. It is also trite that the record of proceedings are binding both on the Court and the parties. See CHIEF FUBARA & ORS VS CHIEF MINMAH & ORS (2003) 5 SCNJ 142, TEXACO VS SHELL (2002) 2 SCNJ 118 and SAPO VS ANIBIRE (2010) 42 (pt.2) N.S.C.Q 927. Per ABUBAKAR MAHMUD TALBA, J.C.A.

RATIO

PLEADINGS: PROOF OF DISPUTE UNDER ISLAMIC LAW

It is trite principle of Islamic law that proof is complete with regard to dispute which pertains to immovable and movable properties, by the evidence of two male unimpeachable witnesses or one such witness and two female witnesses in either case. See SALIMOTU AKANDE & ANOR VS ABDULKAREEM ATANDA (1961-1989) 1 SH. L. R. N 194. See also IHAKMUL-AHKAM commentary on TUFHATUL-HUKKAM at page 34.

The lower Court considered the records from the trial Court and the submission of the appellant and the respondent counsel and held as follows:
“As rightly argued by the appellant herein that the judgment of the trial Sharia Court Wasagu in dismissing the plaintiff/Appellants claim cannot be supported on ground as held by the trial Court at page 20 of the English translated certified true copy of the record that the boundaries stated by the plaintiff are not the same with the boundaries of the farm. Under Islamic law procedure Rules, there is no rule vesting a judge power to give judgment not based on evidence. This is because under Islamic law the judge must give his judgment in light of the evidence given by witnesses as it is provided in the book of IHKAMU AHKAM page 14 which states that the judge depends on the evidence of witnesses in giving judgment see case of BUBA VS MUSA (2007) 7 NWLR (pt. 1032) 27 CA.”

The lower Court further held that;
“on the Respondents argument that none of the appellant has given evidence as to when the alleged borrowing take place (i.e. 12 years as pleaded) and none has given evidence as to the boundaries of the land. Here the respondent tends to be too technical and did not support his argument with any authority. Under Islamic law, the onus is on the plaintiff/appellant to prove his case by calling witnesses who will support his case. This burden has been discharged effectively by the plaintiff/appellant having called six witnesses who testified in support of his case that he borrowed the farmland in dispute to the defendant/respondent…”

The lower Court concluded its findings that;
“As earlier captured in this judgment we re-iterate that in Islamic law once the party asserting as in this case the plaintiff/Appellant, has perfected the proof of his case there is no further discretion left to the judge i.e. Upper Sharia Court judge Wasagu had no option than enter judgment in favour of the plaintiff/appellant. See S. A. SHEHU VS M. IBRAHIM BICI (Supra)
Consequently, we allow this appeal and reverse the judgment of the trial Sharia Court Wasagu in suit No: USC/WSG/63/2016 and confirm the title of the farmland in dispute for the appellant.”

The lower Court after properly evaluating the evidence rightly found that the appellant having called six witnesses who testified in support of his case that he borrowed the farmland to the respondent, now appellant, he has affectively discharged his burden. It is settled law that the evaluation of evidence and the ascription of probative value to evidence are within the province and primary function of trial Court. But if the trial Court fails to or does not evaluate evidence properly, the appellate Court is expected to evaluate the evidence and come to a decision that is correct and fair to the parties. See AFOLABI VS WSW LTD. (2012) 17 NWLR 286 (SC), OLANREWAJU VS GOVN. OYO STATE (1992) 9 NWLR (pt. 265) 225, ODINAKA VS MOGHALU (1992) 4 NWLR (PT.233)1. The lower Court is absolutely correct in its findings that the evidence of Pw1 to Pw6 supported the claim of the respondent that the respondent borrowed the farmland to the appellant. The submission of the appellant’s counsel that the evidence of Pw1 to Pw6 was clearly against the principle of Sharia law because their evidence was never tied to any date or year of the borrowing as well as those who were present, cannot hold water. The appellant’s counsel could not cite any authority under Sharia law to support his assertion. The appellants counsel submitted that the evidence of Pw2 is not admissible as he claimed to be a relation of the appellant. It is trite under Islamic law of “Tajrih” meaning attacking the testimony of the witness by exposing him as unrighteous and unreliable whose evidence is not admissible. Where bias, benefit or suspicion is manifest in a witness he becomes incompetent and his evidence may be subject of impeachment. In case of impeachment of a witness two male witnesses are required to confirm the impeachment before the Court can approve it. See AHMADU VS USMAN (1997) 5 NWLR (pt. 503) 103.

As rightly submitted by respondent’s counsel, the impeachment was never raised timeously by counsel for the appellant at the trial Court to enable the trial Court confirm the impeachment. More so, at page 30 line 30 the appellants counsel stated that “he has no objection” to the evidence of Pw2. The appellants counsel submitted that Pw2 referred to “Sarki” in his evidence and the said “Sarki” was never called as a witness.

I am in agreement with the submission of the respondent counsel that “Sarki” is a title in Hausa meaning Chief. And it is nobody other than the respondent who is known to bear the title. And the issue whether “Sarki” was not the same person as the respondent “Yahi” was never challenged or controverted by the appellant counsel under cross examination and even in the counsel’s address (Izar) at pages 36 to 39 of the records. Per ABUBAKAR MAHMUD TALBA, J.C.A.

RATIO

PLEADINGS: THE PRINCIPLE OF “HAUZI

Under Islamic Law, the principle of “HAUZI” prescription, acquisition of prescriptive title according to the Hadith is that whoever is in peaceful possession of thing, or real property for ten years becomes its owner. Hence, where a person who is not a relation of the claimant has been in peaceful undisturbed possession of real property for ten years or more, he has acquired ownership of the said property. This is more so where the recognized exceptions to the principle are inapplicable. See SIDI VS SHA’ABAN (1992) 4 NWLR (Pt 233) 113, TUMBURKAI VS TUMBURKAI (1991) 2 NWLR (Pt 544) 60.
There are some factors which can defeat the defence of HAUZI, these include infancy or minority, loan, pledge, trust, inheritance and prolonged justifiable absence of the claimant, marital ties, fear of powerful relationship or ruler. This is based on the principle which provides.
“Evidence of ownership takes priority over that of undisturbed possession because the former is stronger than the latter.”
In IHKAM AL-AHKAM page 47 it is provided
“Wa iza kana ligairil haizi bayyinat bil mulki fal kaulu kauluhu, li annal mulki la yan quli bil hauzi”
Meaning: If a person not in possession has proof of ownership his claim takes priority because long possession does not take away ownership, see also MAYYARA Vol 2.

In this instant case, the respondent having established the fact that the disputed farm land was borrowed to the appellant, HAUZI will not be applicable. Consequently, whether the appellant raised the issue of Hauzi or Hauzi was imputed by the trial Court in favour of the appellant, it does not make any difference. Once any of the exceptions exist like in this instant case a loan has been established, Hauzi will not apply. Therefore, issue three is resolved against the appellant. Per ABUBAKAR MAHMUD TALBA, J.C.A.

RATIO

PLEADINGS: THE PROOF OF LANDED PROPERTY UNDER THE ISLAMIC LAW MUST BE BY STATEMENT OF CLAIM

It is trite principle of Islamic law that a claimant who is seeking for declaration of title to land or recovery of possession of landed property, must clearly state in his statement of claim as well as his evidence a description of the boundaries of the land he is claiming. Where the claimant fails to identify the land he claims in his statement of claim the claim ought to have failed. See BAHJA Vol. 1 page 53, it is stated thus;
… (Arabic citation)
Meaning: the description of the land should be specific by clearly specifying its boundaries. If, however, this is not clearly stated in his claims, then his explanation or claim cannot be relied upon. Secondly, if he fails to present evidence, his claim will not be considered except where another person presents evidence of the boundaries.
The position under Islamic law is in all fours with the common law principle where a claimant fails to plead and establish the identity of the land to which his claim of ownership or title relates, whatever evidence whether oral or documentary he produces at the trial and however cogent and credible the evidence might appear it cannot in law ground a declaration of title in his favour, see KARIMU VS LAGOS STATE GOVERNMENT (2012) 5 NWLR (Pt 948) 210.

In this instant case the respondent’s claim at the trial Court has a definite, precise and accurate description of the boundaries of the disputed farmland. The lower Court was right in its finding at page 83 lines 16-25 thus;
“On the issue of boundaries, Sharia demands that claim should be precise and concrete, no claim is considered unless it is exact, well defined and specific. It is not valid for a plaintiff to make a claim of undefined parcel of land or unknown property because such claim does not help the course of justice. A valid claim should, therefore indicate the exact amount of money which the plaintiff intends to claim from the defendant, the size, location, and boundaries of the parcel of the land he wishes to claim about as well as the full description of any property which the plaintiff intends to claim. See ALH SEMABU ABEBI MAISHINGIBA V ALH ALABI OPOBIYI (1982) FCA/K/7182 judgement delivered on 23 November…”

In its consideration of page 45 lines 7-8 of the records the trial Court stated thus;
“2. Even the boundaries stated by the plaintiff are not the same with the boundaries of the farm.”

On this note the lower Court made the following findings at page 82 lines 14-25 of the records, thus;
“From the English translated certified true copy of the record or proceedings of the trial Court, the identity of the disputed farmland was not in issue before the trial Court, because the boundaries of the disputed farmland were well stated at page 1 of the record of proceedings by the plaintiff. The defendants counsel did not state different boundaries all together except with little modifications as to conflicting demarcations nowhere in both English and Hausa records it is shown that the trial Court has visited the disputed farmland to account otherwise. The boundaries for the plaintiff/appellant are illegal and un-Islamic.
Thus it is prohibited for a judge to deliver judgement when he has no evidence placed before him through any of the known forms of testimony/admission. See SAFETI V SAFETI (2007) 2 NWLR (Pt 1017) 56 CA.” It is crystal clear that the findings made by the trial Court are not supported by any evidence adduced before the Court. The lower Court is correct in its findings that the identity of the disputed farmland was not in issue before the trial Court because the boundaries of the disputed farmland were well stated at page one of the record of proceedings by the plaintiff. The defendant’s counsel did not state different boundaries all together except with little modifications as to conflicting demarcation.

It is trite principle that where the identity of the land in dispute is not in issue between the parties, no onus naturally lies on a claimant for declaration of title to such land to prove the said identity as the fact is not an issue for determination between the parties in the suit. In other words, the burden of proof is obviated where the identity and extent of the land in dispute was never in issue.
See ALHAJI GONI KYARI VS ALH. CIROMA ALKALI & ORS (2001) 8 SCM 43,
BOSINDE AYUYA & 4 ORS VS CHIEF NAGHAN YONRIN & 3 ORS (2011) 4 SC (PT. 11) 1. BENEDICT OTANMA VS KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94.
IREJU NWOKIDU & 30 ORS VS MARK OKANU & ANOR (2010) 1 SC (pt.1) 136.
ALH. BELLO MAIGARI & ORS VS ALH. SANI MAILAFIYA (2010) LPELR- 3704 (CA).
MANI VS SHANONO (2006) 4 NWLR 9pt. 969) 132. Per ABUBAKAR MAHMUD TALBA, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

BOMBOY MAI DIDOGA APPELANT(S)

And

YAHI MUSA KARAMU RESPONDENT(S)

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Justice Kebbi State, sitting in its appellate jurisdiction, delivered on the 22nd day of June, 2018 in Suit NO: KB/HC/66A/2017. On the 26th day of February, 2019 this Court granted leave to file the notice of appeal and same was filed on the 27th day of February, 2019.

On the 9th day of January, 2016 the Respondent as plaintiff instituted an action at the Upper Sharia Court Wasagu, in suit No: USC/WSG/63/2016, against the appellant as defendant. The Respondent’s claim is for the recovery of a farm land which he borrowed the appellant for about 12 years. The respondent denied the claim and he counter claimed that his father was the rightful owner and he inherited it from his father.

After hearing witnesses, the trial Upper Sharia Court Wasagu gave judgment in favour of the Appellant. Being dissatisfied with the decision of the trial Court, the respondent appealed to the High Court of Justice Kebbi State, (herein referred to as the lower Court). After hearing, the lower Court in a considered judgment, allowed the appeal

of the respondent. Upon being aggrieved by the decision of the lower Court, the appellant appealed to this Court. Pursuant to the leave granted by this Court, the notice of appeal filed on the 27th February, 2019 contain seven (7) grounds of appeal. See pages 95-99 of the records.

At the hearing of this appeal on the 2nd day of June, 2020, Ibrahim Abdullahi of counsel adopted the appellant’s brief of argument filed on the 30th January, 2020 but deemed properly filed and served on the 10th march, 2020. He also adopted the appellant’s reply brief filed on 1st June, 2020 and deemed properly filed and served on the 2nd June, 2020. Equally A. I. Wasagu of counsel holding the brief of A.G. Rambo Esq, adopted the respondents brief of argument filed on the 7th April, 2020. While the appellants counsel urged the Court to allow the appeal and set aside the decision of the lower Court. The respondent counsel urged the Court to dismiss the appeal and affirm the decision of the lower Court.

From the seven grounds of appeal, the appellant distilled four issues for determination, thus;
1. Did the Court below have the requisite jurisdiction to entertain Appeal No:

KB/HC/66A/2017 when the Respondent was not a party to the appeal and the issue arising from the decision of the trial Court to the Court below was not an issue relating to title to land.
2. Was the Court below correct in law when it made use of the evidence of PW’s 2,3,4,5,& 6 in holding that the Respondent has sufficiently proved that he borrowed the disputed farmland to the appellant.
3. Was the Court below correct in law when it held that the appellant did not raise the issue of Hauzi but same was imputed by the trial Court in favour of the appellant.
4. Was the decision of the Court below correct in law.

The respondent adopted the issues raised by the appellant and replied to same accordingly. I also adopt the four issue for the determination of this appeal.

Arguing this appeal, the appellant’s counsel on issue one he submitted that jurisdiction is a threshold issue which can be raised at any stage of the proceedings and even for the first time on appeal. Once it is raised it has to be considered and resolved one way or the other. The law is trite that any judicial proceedings and decision reached without jurisdiction is

complete nullity. He relied on the following cases MADUKOLU VS NKEMDILIM, ESSIEN VS ESSIEN (2010) ALL FWLR (PT. 523) 1192, WESTERN STEEL WORKS LTD VS IRON STEEL WORKERS UNION (1986) 2 NSCC (VOL 17) 786.

He submitted that the issue of jurisdiction can be raised either by the parties or by the Court suo motu. He relied on the case of WANIKO VS ADE-JOHN (1999) 9 NWLR (PT. 619) 407, IBRAHIM VS TANBAI (2000) 6 SC (PT. 1) 190, IBRAHIM VS LAWAL & ORS (2015) LPELR – 24736 (SC).

Learned counsel submitted further that though the appellant did not challenge the jurisdiction of the Court below to hear and determine the respondent’s appeal, the issue can be properly raised before this Court. He relied on the case of EKUDANO VS KEREGBE (2002) 38 WRN (pt. 139) 142, MANAGEMENT ENTERPRISES LTD VS OTUSANYA (1987) 2 NWLR (pt. 55) 179, RIVWAY LINES LTD VS RHEIN MAS UND (1993) 7 NWLR (PT. 308) 692.

The learned counsel submitted that at the trial Court the respondent name used in institution of suit No: USC/WSG/CV/63/2016 against the appellant was YAHI MUSA KARMU while the appellant name as defendant used in the said suit was BOMBOY MAI DIDOGO. And the party

that appealed to the Court below from the decision of the trial Court was one YAHI MUSA KARAMU a name distinct from the name used at the trial Court. While the appellant then as respondent was described as BOMBOI MAI DIDIGA as a respondent at the Court below, a name equally distinct from the name used at the trial Court. Learned counsel submitted that it was these conflicting names that were used in the prosecution of the appeal before the Court below.

The parties at the trial Court were different from the parties at the Court below. There was no proper appellant and respondent before the Court below for which the Court below could properly have exercised jurisdiction over in the determination of the appeal culminating to its judgment.

Learned counsel submitted that the error is not a simple defect or irregularity that can be glossed over but one of a fundamental nature appearing as it is in the notice of appeal. He relied on the case of KOLAPO & ORS VS NZEDINMA & ANOR (2011) LPELR 8820 (CA).

Learned counsel contended that failure to file a notice of appeal according to the statutory requirements as to proper parties renders the appeal

of the respondent before the Court below incompetent and a fortiori affects the jurisdiction of the Court below to have entertained the appeal of the respondent. He cited the case of IFEZUE VS OKAFOR (2017) LPELR – 43958 (CA) to buttress his argument.

Learned counsel further submitted that the notice of appeal filed at the Court below is the originating process upon which the appeal at the Court below was founded. It is the process by which a party aggrieved by the decision of a Court signifies his dissatisfaction. SeeADELEKAN VS ECU LINE NV (2006) ALL FWLR (pt. 321) 1231.

The learned counsel further submitted that the party who was aggrieved by the decision of the Court below and who could have appealed is YAHI MUSA KARMU, but the party that appealed as an appellant was one YAHI MUSA KARAMO, who was not a party at the trial Court and therefore lacks the necessary locus standi to have filed an appeal before the Court below, which affects the jurisdiction of the Court below to entertain the appeal.

Learned counsel further submitted that the claim of the respondent does not relate to an issue of title to land for which the Court below could

exercise jurisdiction on. And it is the claims at the trial Court that determines the jurisdiction of the Court in a matter. See ALH. UMAR VS ASSOCIATED REGISTERED ENGINEERING CO. LTD & ORS (1990) 6 SCNJ 146, KANAWA VS MAIKASET (2007) 10 NWLR (PT. 1042) 283, CBN VS SAP (NIG) LTD. (2005) 3 NWLR (pt. 911) 153.

The learned counsel submitted that the claim of the respondent before the trial Court does not raise the issue of title to land. And that the appellant through his counsel denied the claim of the respondent and counter claimed that the appellant’s father was the rightful owner of the disputed land through inheritance and who is still alive and that the appellant in turn had been farming on the disputed land. Learned counsel concluded that looking at the claims of the respondent at the trial Court and the counter claim of the appellant, will reveal that it involves question of Islamic Law which the parties being Muslims requested the trial Court to determine in accordance with Islamic law and thus under Section 277 (2) (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is the Sharia Court of Appeal that has the

requisite jurisdiction to entertain the appeal of the respondent and not the Court below.

Reacting to the submission of the appellant’s counsel on issue one, the respondent counsel submitted that the Court below has the requisite jurisdiction to entertain appeal No: KB/HC/66A/2017 as the plaintiff/respondent herein is a proper party at the trial Court and the claim before the trial Court as culled at page 11 paragraph 4:13 of the appellant brief of argument wholly relate to declaration of title to land and does not in any way relate to the matters of exclusive jurisdiction of the Sharia Court of Appeal as enshrined under Section 277 (2) of the Constitution of the Federal Republic of Nigeria, 1999. Learned counsel referred to the plaintiff/respondent’s claim before the trial Court at page 26 of the records. And he submitted that at the opening paragraph of the plaintiff/respondent’s claim as reproduced at pages 11 of the appellant’s brief of argument, the appellant deliberately omits “MUSA” as part of the names mentioned by the plaintiff/respondent, see page 11 of the appellant’s brief of argument.

Learned counsel submitted further that the names used by the plaintiff/respondents at the trial Court in the institution of suit No: USC/WSG/CV/63/2016 as “YAHI MUSA” while the defendant’s/appellant’s names used in the said suit as “BOMBOY MAI DIDOGO” as against that used at the Court below as “YAHI MUSA KARAMO” for the appellant’s/respondent’s and “BOMBOY MAI DIDOGA” as respondent’s at the Court below are mere synonyms which did not in any way mislead the Court below or alter the persons names in the processes as to oust the jurisdiction of the Court below to entertain appeal in suit No: KB/HC/66A/2017.

Learned counsel submitted that both the defendant/appellant and the plaintiff/respondent were ably represented by counsel of their own choices who actively participated in the entire proceedings.

And that through out the entire proceedings none of the counsels for either the defendant/appellant or plaintiff/respondent raised any objection to the synonyms as used by the parties simply because both the trial Court and the Court below cannot be said to have been misled on account of the synonyms. “KARMU”

and or “KARAMO” “DIDOGO” and or “DIDOGA” as the case may be are respectively the names of the villages of the appellant’s and the respondent’s via Kanya, Danko Wasagu Local Government as properly described in the plaintiff/respondent claim at page 26 of the record. The real names of the parties as YAHI MUSA and BOMBOY MAI were consistently used and maintained throughout the proceedings at the trial Court and the Court below in a manner that cannot be said to have misled the Court in assuming its jurisdiction to have entertain appeal No: KB/HC/66A/2017 especially there being no objection by both counsel to the identity of the parties before it. He cited the case of MOHAMMED VS M. E. CO. LTD (2010) 2 NWLR (pt. 1179) 487, on the definition of a name.

Learned counsel submitted that the names used at both the trial Court and the Court below fully identified the parties in their own respective names distinct from any other persons whatsoever.

And there being no objection from both counsel’s at the earliest opportunity in the conduct of the proceedings with which the synonyms were used to impugn or challenge the

proceedings the appellant cannot complain now in his appeal. He relied on the case of KWASHI VS PUSMUT (2010) 1 NWLR (pt. 1176) 521 and AMANCHUKWU VS F.R.N (2007) 6 NWLR (pt. 1029) 529.

Learned counsel submitted further that the difference in the usage of one of the names of both parties to the proceedings at the trial Court and the Court below as “KARMU” and or “KARAMO” “DIDOGO” and or “DIDOGA” as the case may be does not constitute a misnomer and therefore not fatal to the proceedings of the trial Court and the Court below in its jurisdiction to entertain suit No: KB/HC/66A/2017 and it has not in any way misled the Court. He relied on the case of KALU VS CHUKWUMEREIJE (2012) 12 NWLR (pt. 1315) 434 where this Court held thus;
“Where no one is misled by the way the name of a party to a proceedings on appeal is written, such that it is clear that the party was the same as the party in the proceedings in the lower Court, then there is no misnomer. In this case, there was no misnomer created between His Excellency, Dr. ORJI UZOR KALU, the petitioner and His Excellency Dr. UZOR KALU the

appellant.”

See also ATIKU ABUBAKAR & 1 ANOR VS INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 2 ORS SUIT No: CA/PEPC/002/2019 (unreported) delivered on Wednesday, 11th day of September, 2019 where the use of MUHAMMAD BUHARI and MUHAMMED BUHARI came in issue.

Learned counsel further submitted that the appellant grossly misconstrued the extent of the jurisdiction of the Sharia Court of Appeal as envisaged under Section 277 (2) of the constitution of the Federal Republic of Nigeria vis a vis, the respondents claim at the trial Court. He referred to page 26 of the records.

He submitted that the jurisdiction of the Sharia Court of Appeal under Section 277 (2) of the Constitution are explicitly limited to issues relating to Islamic personal law, namely; marriage, divorce, inheritance including matters, concerning Waqf, gift, will or succession, custody and guardianship of children. Therefore, the plaintiff/respondents claim does not relate to those areas of jurisdiction of the Sharia Court of Appeal. And he relied on the case of ADO VS DIJE (1983) SLR 11 (CA), where the Court held
“land dispute or action for recovery of

premises can only be heard by Sharia Court of Appeal if it involves issues of Islamic personal law such as Waqf, will or succession.”

He submitted that the argument of counsel for the appellant that the decision of the trial Court ought to have been lodged on appeal to the Sharia Court of Appeal is certainly out of context, and a misconception. He submitted that the jurisdiction of State High Court is well stated under Section 272 (1) of the 1999 Constitution and its powers to review cases of the area Court have also been enshrined under Section 14 of the Kebbi State High Court Law, Cap 60 Laws of Kebbi state.

Issue number one has two legs. One is whether the Court below has the requisite jurisdiction to entertain appeal No: KB/HC/66A/2017 when the respondent was not a party to the appeal. And two is whether the decision of the trial Court to the Court below was not an issue relating to title to land. I will prefer to deal with the second leg of issue one first. It is the contention of the appellant’s counsel that the claim of the respondent does not relate to an issue of title to land for which the Court below, could exercise

jurisdiction. Learned counsel argued that the appellant through his counsel denied the claim of the respondent and counter claimed that the appellant’s father was the rightful owner of the disputed land through inheritance and that the appellant in turn had been farming on the disputed land. It is instructive to note here that the appellant’s counsel is misconceived as to what determines the jurisdiction of the Court. It is trite that it is the claims of the plaintiff that determines the jurisdiction of the Court. The Court has no business to look at the statement of defence or counter claim. The Court must restrict itself within the boundaries of the plaintiffs claim. See ALHAJI UMAR VS ASSOCIATED REGISTERED ENGINEERING CO. LTD & ORS (Supra), C.B.N VS SAP (Nig.) LTD (Supra) and KANAWA VS MAIKASET (Supra) where the Court held that;
“jurisdiction of Court is determined by considering and examining the claims of the plaintiff at the trial Court or the appellant at the appellant Court.”
Now the fact that in this instant case the appellant denied the respondent’s claim and he counter claimed that his father is the rightful owner of the

disputed land through inheritance it did not change the character of the respondents claim.
Now what is the respondent’s claim?
It reads thus;
“I Yahi Musa Karmu via Kanya Danko Wasagu Local Government, I am suing Bomboy a resident of Mai Didogo via Kanya in Danko Wasagu local Government before this Court for it to take back my farm which I borrowed him about 12 years ago. I have followed all avenues for him to give it back to me peacefully but to no avail. This farm is situated at Bagaro in Kanya at Danko Wasagu Local Government and its having the following boundaries;
A. North is bounded by a stone and the farm of Isah and Musa Baushes farms
B. South by the farm of Kango before Mai bought it.
C. East is bounded by the farm of Musa Baushe before Mai bought it.
D. West is bounded by the farm of Musa Audu.
Based on this, I am therefore urging this Honorable and just Court to order him to give me back my farm. This is my claim”
It is crystal clear that the respondent’s claim relates to the recovery of a farm land which he said he borrowed to the appellant about 12 years ago. It has nothing to do with

inheritance. The lower Court has exclusive jurisdiction to deal with matters relating to the recovery of land to the exclusion of the Sharia Court of Appeal, except if it involves any question of Islamic personal law regarding a Waqf, gift, will, succession where the endower, donor, testator, or deceased person is a Muslim. Therefore, other than what has been prescribed under Section 277(1) and (2) (a-e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Sharia Court of Appeal has no jurisdiction to hear and determine any matter outside Islamic personal law.

The second leg of issue two is whether the Court below has the requisite jurisdiction to entertain appeal No: KB/HC/66A/2017 when the respondent was not a party to the appeal. The appellant counsel contended that at the trial Court the respondent name used in the institution of suit No: USC/WSG/CV/63/2016 against the appellant was YAHI MUSA KARMU, while the appellant’s name as defendant used in the said suit was BOMBAY MAI DIDOGO. And that the party that appealed to the lower Court from the decision of the trial Court was one YAHI MUSA KARAMO and the appellant name as BOMBOI

MAI DIDOGA. The appellant counsel argued that the parties at the trial Court where different from the parties at the lower Court.

As such there was no proper appellant and respondent before the lower Court for which the lower Court could properly have exercised jurisdiction over in the determination of the appeal culminating to its judgment.

The respondent’s counsel argued that KARMU and KARAMO, DIDOGO and or DIDOGA as the case may be are respectively names of the villages of appellant and the respondent via Kanya, Danko Local Government as properly described in the plaintiff/respondent’s claim at page 26 of the record. The real names of the parties are YAHI MUSA and BOMBAY MAI which were consistently maintained throughout the proceedings at the trial Court and the lower Court. He said no one was misled as to the identity of the parties. Now the appellant grievance is the name of the respondent that was used at the trial Court as well as the Court below. At the trial Court the name of the respondent is YAHI MUSA KARMU while at the Court below the name of the respondent was YAHI MUSA KARAMO. The difference between the two names is KARMU and KARAMO. The

name YAHI MUSA remains the same except KARMU and KARAMO.
For the purpose of emphasis there is no doubt in the fact that the name of the respondent YAHI MUSA remains the same at the trial Court and the lower Court. The use of the KARMU and KARAMO at the trial Court and the lower Court can at best be described as a misnomer. A misnomer simply means a wrong use of a name. if the person or entity intended to be sued exist but a wrong name is used to described it, it is a misnomer. It is a mistake in name, that is giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued, or when an action is brought by or against the wrong name of a person. When both parties are quite familiar with the person or entity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue

or be sued. See REGISTERED TRUSTEES OF A.O.N VS N.A.M.A (2014) 8 NWLR (pt.1408) 1, CHAIRMAN/CHIEF EXECUTIVE NDLEA & ORS VS UMEH & ANOR (2014) LPELR-24373 (CA), KARMAME & ANR VS DANAZUMI & ORS (2011) LPELR-9192, A.P.G.A VS UBAH (2019) 15 NWLR (pt.1694)25.
In this instant case the name of the respondent is YAHI MUSA and this name was used at the trial Court and the Court below. The mistake relates to the name added to YAHI MUSA, that is KARMU and/or KARAMO. There is no any doubt or misgiving as to the identity of the respondent either at the trial Court or at the Court below.
The appellant was not in any way misled as to the identity of the respondent. Ordinarily a defendant or respondent who defends an action and who is not misled as to the name of the plaintiff or the defendant in the action, will not be heard to complain about the use of name. he will be deemed to have waived his right to complain. The respondent was a party to the appeal No: KB/HC/66A/2017 and therefore the lower Court had the requisite jurisdiction to entertain the appeal. Issue one is resolved against appellant in favour of the respondent.

Issue two is, was the Court below correct in law when it made use of the evidence of PW’s 2,3,4,5 & 6 in holding that the respondent has sufficiently proved that he borrowed the disputed farmland to the appellant.

The appellant’s counsel contended that the respondent’s witnesses never gave reliable evidence in favour of the respondent. Under Islamic rule of evidence there is the procedure of “TAJRIH” meaning attacking the testimony of the witness by exposing him as unrighteous and unreliable, whose evidence is not admissible. He submitted that although a person may qualify to be a witness for being of high moral standing, he may still be incompetent to testify in favour of one of the litigants. The evidence of PW1 was never tied to any date or year of the purported borrowing as well as those who were present. Likewise, PW2, PW3, PW4, PW5, & PW6 which the Court below held that they supported the claims of the respondent at the trial Court was clearly against the principle of Sharia law because like PW1 their evidence was never tied to any date or year of the purported borrowing as well as those who were present. The learned counsel submitted that it was

one Sarki that purportedly loaned the disputed farmland to the appellant and not the respondent. He referred to page 30 line 8-16 of the record. He submitted further that while PW1 stated that it was the respondent that personally did the alleged borrowing of the disputed land, PW2 pegs the person who did the alleged borrowing to one Sarki. And from the evidence of PW2 he claimed to be a relation of the appellant. Under Islamic law the evidence of a relation to any of the parties is not admissible. He relied on the case of KOJIYO & ORS VS SALISU (2018) LPELR – 44508 (CA).

Learned counsel submitted further that the evidence of PW3 shows that he does not even know who owns the place in dispute. His evidence is hearsay which under Islamic law is inadmissible. He said an analysis of the evidence of PW’s 4, 5, & 6 will reveal that none of the respondent’s witnesses testified as to who owns the disputed farmland or how the respondent came in possession of the disputed farmland. These pieces of evidence he said cannot be said to be supportive of the case of the respondent as held by the Court below. And that, the purported Sarki referred to

by the PW2 was not called as a witness. He submitted further that under Islamic law the general principle in civil matters with regard to both movable and immovable properties is that the proof is taken as complete and burden discharged in the claimants case upon the following;
a. Evidence of one unimpeachable male witness or
b. Evidence of one unimpeachable male witness and two or more unimpeachable female witness or
c. Evidence of one male or two female or more witnesses with claimant oath in either case.
He relied on the case of ABUBAKAR & ANR VS BASHIR (2017) LPELR – 43272 (CA).

He submitted that the respondent did not meet this threshold burden of proof and the Court below failed to appreciate this fact. He urged the Court to resolve the issue in favour of the appellant.

In response to this issue the respondent’s counsel argued that the Court below was correct in law when it made use of the evidence of PW1, 2, 3, 4, 5 & 6 in holding that the respondent has sufficiently proved at the trial Court that he borrowed the disputed farmland to the appellant in its findings at pages 79-81 of the record.

The evidence of PW1 at page 29 lines 10-15 of the record explicitly supports the plaintiff/respondents claim at a page 26 of the record to wit; borrowing the farmland to the appellant by the person of the respondent Yahi. The evidence of PW1 was neither controverted nor challenged by the appellant’s counsel at the trial Court. The evidence of Isyaku Musa PW2, was in utmost fear of God, confirmed to the Court that he is even a relation to the appellant, Bomboy but still elected to come to Court to testify the truth. The evidence of PW2 was never challenged or discredited by the appellant’s counsel who merely stated at page 30 line of the record that “he has no objection”. He submitted further that Sarki as mentioned in the evidence of PW2 is merely a title in Hausa, meaning Chief. It is nobody other than that of the respondent who is known in title to bear same. The issue of whether “Sarki” was not the same person as the respondent Yahi was never challenged or controverted by the appellant’s counsel, under cross examination and even in the counsel’s address (Izar) at pages 36-39 of the record. He relied on case of

CONTRACT RESOURCES (NIG) LTD VS WENDE (1998) 5 NWLR (pt. 549) 243 (CA) where this Court held thus;
“where an evidence is unchallenged and uncontroverted and credible, it should be accepted.” See also TOKIMI VS FAGITE (1999)10 NWLR (pt. 624) 590 CA.

Learned counsel submitted further that the relationship of PW2 to the defendant/appellant was not qualified as to the nature of relationship that is within the context of those categories of impeachable witnesses stated in KOJIYO & ORS VS SALISU (Supra). The impeachment was not raised timeously by counsel for the appellant at the trial Court to enable the trial Court confirm the impeachment. The learned counsel submitted that the procedure under Islamic law in case of impeachment of a witness is that two male witness are required to sustain the impeachment. He relied on the case of AMADU VS USMAN (1997) 5 NWLR (pt. 503) 103 where the Court held thus;
“in case of impeachment of a witness, two male witnesses are required to confirm the impeachment before the Court can approve of it.”

The learned counsel submitted that the evidence of PW3 Nadiri at page 31 of the record supports the

respondent’s claim at the trial Court. And the evidence does not in any way constitute a hearsay as argued by the appellant’s counsel. He said PW3 narrate how the appellant Bomboy met him at home and requested him to take him to a place and asked him if he knows the owner of the place (farmland), PW3 told him it is Audi’s but eventually when they went to the place Sani confirmed to them that the place belonged to Yahi the respondent. At that point the appellant Bomboy went home and came back up to 3 times and on the 4th occasion he was given the place. Yahi then called on people and the people asked him to loan the place. PW3 in concluding his evidence at page 32 line 6-8 of the record he emphasized on how he admonished the appellant to fear God because it was with him (PW3) that they went to request for the borrowing of land from the respondent. He said the evidence of Pw3 has established the facts of what transpired between Pw3 and the appellant, which cannot be said to be a hearsay. See KALA VS POTISKUM (1998) 3 NWLR (pt. 540) 1 SC.

Learned counsel submitted further that the evidence of Pw4, Pw5 and Pw6 clearly established the respondent’s claim at

the trial Court and the Court below was right in affirming its judgments. He said Pw4 gave evidence as to how the land in dispute was borrowed to the appellant by the respondent and the appellant did not impeach or objected to same.

Pw5 also gave evidence as to how the land was borrowed out to the appellant by the respondent. The evidence of which was neither challenged, impeached or controverted by the defendant/appellants counsel. He said Pw6 testified as to how the appellant asked for the loan of the land in dispute from the respondent in public glare. The evidence of Pw6 was also not challenged, impeached or controverted by the appellant’s counsel at the trial Court. Learned counsel urged the Court to resolve the issue in favour of the respondent.

In order to resolve this issue, it is pertinent to look at the evidence of Pw1 to Pw6 at the trial Court. For the sake of emphasis, the issue in contention is whether there is sufficient evidence to prove that the appellant borrowed the disputed farmland from the respondent. The evidence of Pw1 to Pw6 is contained in pages 29 to 35 of the records. It is settled law that the record of appeal is

the only document which is relied upon by appellate Judges when deciding appeals and in finding out what transpired in the trial Court. See OMOKUWAJO VS FRN (2013) 9 NWLR (pt.359) 300; NITEL LTD VS IKPI (2007) 8 NWLR (pt. 1320) 396 and FORTUNE INT`L BANK PLC VS CITY EXPRESS BANK LTD (2012) 14 NWLR (pt.1319) 86. It is also trite that the record of proceedings are binding both on the Court and the parties. See CHIEF FUBARA & ORS VS CHIEF MINMAH & ORS (2003) 5 SCNJ 142, TEXACO VS SHELL (2002) 2 SCNJ 118 and SAPO VS ANIBIRE (2010) 42 (pt.2) N.S.C.Q 927.

At page 29 lines 11-15 Pw1 Ibrahim Garba stated thus;
“Yahi has sometimes made me labour on that farm and I was there when it was borrowed to Bomboy because I was there when he sought for it and Yahi said he will look into it. That is all. There was a naming ceremony and after the 1st, 2nd and 3rd day, it was agreed that he should be borrowed because he will not be denied a land to cultivate on.”

At page 30 lines 8-16 Pw2 Isiyaku Musa stated thus
“what I know between I and God is that Bomboy is my relation when he came to Sarki he met us fencing the house he and Na’Diri

he came and said they should loan the place for him and Sarki said he will think about it, after sometimes a naming ceremony was held Nama’s house and he said Sarki was slow concerning the issue. Then Sarki said you are our Mallam and have been making our naming and funerals who can we refuse to you a place? And he said do I have to discuss with my younger one. I have lend you the place. That is what I know.”

At page 31 lines 17-24 and page 32 lines 1-9 Pw3 Nadiri state thus;
“Mal Bomboy, he met me at home and said to me he has come to take a place for farming, he asked me if I know the owner of the place and I told him that I know it is Audi’s. we went to the place and Sani said the place belongs to Yahi and he said we should witnesses. Bomboy went home and came back up to 3 times and the 4th time he was given the place. We were celebrating at our house and that after the celebration it will be done. Yahi called on people and they said he should be given loan of the place.
And people said let him given loan from there Bomboy went home and Yahi said Bomboy the place has been given loan to you but I am on the forestry reserve.

He said if the government receive back its land I will come back to my farm but Bomboy said he has not taken loan from Yahi.
I said to Bomboy fear God because it was together with you that we went to take loan. Bomboy said it is their inherited land he did not take loan. I then said I will be a witness that is all.”

At page 32 lines 20-23 Pw4 is Sani Audu. His evidence is at page 33 lines 5-11 he stated thus;
“What I know is that Bomboy went to borrow a farm from Yahi he rose on his position as our Almajir here is a farm I have given you as loan in the presence of people, we said we are happy since he is the one that does our ceremonies of weddings, burials and naming and Yahi said we are in the Government Reserved Areas. If the Government drives us out I will come back to my place he said there is no problem. That is all.”

At page 34 lines 13-21 Pw5 Abubakar Sani he stated thus;
“just one thing between I and Musa Yahi the Bomboy was given loan of the farm there was a ceremony at the House of Nama Musa Yahi then said Bomboy came to be given loan of a farm up to 4 times, and he said people today I will of a farm to

this boy because he is our Mallam, you should witness.
He said because we are given loan of government reserve land and if Government drives us out I will come back to my place up to 3 times Bomboy said he has agreed and he said then let them go so that, he lends him. That is all.”

At page 35 lines 11-18 Pw6 Garba Rega stated thus;
“Mallam Bomboy asked for a loan when we were at naming ceremony at Nama’a House, what Sarki explains in the public the farm should be given to him on loan for public witness for the public to witness his position as our Almajiri. Dan Yahi assured him of the loan I will not give except I make explanations in respect of what was given to us out of the government land, we were given loan, if they drive from the Government land, he will come back and take back the loan given to Bomboy. Bomboy said he has agreed, that is all.”

(1961-1989) 1 SH. L. R. N 194. See also IHAKMUL-AHKAM commentary on TUFHATUL-HUKKAM at page 34.

The lower Court further held that;
“on the Respondents argument that none of the appellant has

given evidence as to when the alleged borrowing take place (i.e. 12 years as pleaded) and none has given evidence as to the boundaries of the land. Here the respondent tends to be too technical and did not support his argument with any authority. Under Islamic law, the onus is on the plaintiff/appellant to prove his case by calling witnesses who will support his case. This burden has been discharged effectively by the plaintiff/appellant having called six witnesses who testified in support of his case that he borrowed the farmland in dispute to the defendant/respondent…”

the farmland in dispute for the appellant.”

date or year of the borrowing as well as those who were present, cannot hold water. The appellant’s counsel could not cite any authority under Sharia law to support his assertion. The appellants counsel submitted that the evidence of Pw2 is not admissible as he claimed to be a relation of the appellant. It is trite under Islamic law of “Tajrih” meaning attacking the testimony of the witness by exposing him as unrighteous and unreliable whose evidence is not admissible. Where bias, benefit or suspicion is manifest in a witness he becomes incompetent and his evidence may be subject of impeachment. In case of impeachment of a witness two male witnesses are required to confirm the impeachment before the Court can approve it. See AHMADU VS USMAN (1997) 5 NWLR (pt. 503) 103.

“Sarki” in his evidence and the said “Sarki” was never called as a witness.

The evidence of Pw3, Pw4, PW5 and Pw6 remain unchallenged and uncontroverted. It is trite law that where an evidence is uncontroverted, unchallenged and credible it should be accepted. See: CONTRACT RESOURCES (NIG) LTD VS WENDE (1998) Supra and TOKIMI VS FAGITE (1990) Supra.

The lower Court was correct when it made use of the evidence of PW’s 2, 3, 4, 5, & 6 in holding that the respondent borrowed the disputed farmland to the appellant. Issue two is resolved against the appellant.

Issue three is whether the Court below was correct in law when it held that the appellant did

not raise the issue of Hauzi but same was imputed by the trial Court in favour of the appellant. The appellants counsel submitted that from the claim of the respondent at the trial Court, it was shown that the appellant had been in possession of the disputed farmland for over 12 years. The reply of the appellant to the claim of the respondent at the trial Court equally shows that the appellant had been in possession of the disputed farmland over and above the period of Hauzi prescribed under Islamic law. And equally the address of counsel at the trial Court during Izari. At both the trial Court and the Court below the undisputed evidence from the claims of the respondent at the trial Court is that the appellant had been in possession of the disputed farmland. The appellant’s possession is treated as evidence of one witness under Islamic law and coupled with his oath the appellant is entitled to judgment. Therefore, Hauzi inures in favour of the appellant and same was never imported by the trial Court but is borne from the cold printed record. Learned counsel relied on the case of FURFURI VS RAWAYYAH (2008) ALL FWLR (pt. 401) 1000.

The respondents counsel in his response he submitted that assuming but not conceding that the issue of Hauzi was properly raised by the appellant’s counsel at the trial Court, the Court below was right in holding that the respondent having satisfactorily established in evidence the borrowing of the land in dispute to the defendant/appellant. The principle under Islamic law, trust, or loan defeats Hauzi (prescription). This is because evidence of ownership takes priority over that of possession. He cited the book IHKAM AL-AHKAM page 47 where it state that;
“if the person in possession has proof of ownership, his claim takes priority because long possession does not take away ownership.”

The learned counsel submitted that where a plaintiff is able to prove the existence of a pledge, trust or borrowing to the defendant then that element will defeat the claim of Hauzi by the defendant. See BALARABE V AUDU (1997) 10 NWLR (Pt 524).
BAHA LABBO DAN HASSAN VS NANI MODE & 2 ORS (2006) 3 SLR (Pt 1) 11. And BAHAJA Vol 1.

Under Islamic Law, the principle of “HAUZI” prescription, acquisition of prescriptive title according to the Hadith

is that whoever is in peaceful possession of thing, or real property for ten years becomes its owner. Hence, where a person who is not a relation of the claimant has been in peaceful undisturbed possession of real property for ten years or more, he has acquired ownership of the said property. This is more so where the recognized exceptions to the principle are inapplicable. See SIDI VS SHA’ABAN (1992) 4 NWLR (Pt 233) 113, TUMBURKAI VS TUMBURKAI (1991) 2 NWLR (Pt 544) 60.
There are some factors which can defeat the defence of HAUZI, these include infancy or minority, loan, pledge, trust, inheritance and prolonged justifiable absence of the claimant, marital ties, fear of powerful relationship or ruler. This is based on the principle which provides.
“Evidence of ownership takes priority over that of undisturbed possession because the former is stronger than the latter.”
In IHKAM AL-AHKAM page 47 it is provided
“Wa iza kana ligairil haizi bayyinat bil mulki fal kaulu kauluhu, li annal mulki la yan quli bil hauzi”
Meaning: If a person not in possession has proof of ownership his claim takes priority because long

possession does not take away ownership, see also MAYYARA Vol 2.

Issue four is whether the decision of the Court below is correct in law. The appellant’s counsel submitted at page 24 lines 23-25 that he has demonstrated the unreliability of the witnesses for the respondent that testified at the Court below and the futility of their evidence elsewhere in his brief and he adopt all the arguments on same in this issue. First of all, to put the records straight no witness has testified at the Court below rather witnesses testified at the trial Court. Secondly the issue of reliability of the witnesses for the respondent that testified at the trial Court has been dealt with under

issue two.

The evidence of PW1 to PW6 remain unchallenged and uncontroverted and therefore the lower Court was right when it relied on the evidence of PW1 to PW6, in its finding in favour of the respondent. The submission of the appellant’s counsel that on the face of the records serious questions of the fairness of the proceedings was evident but glossed over by the Court below is grossly misconceived.

The appellant’s counsel equally submitted that assuming without conceding that the Court below raised an issue suo motu, the position of the law is that to warrant an appellate Court’s reversal of a decision alleging that there was an issue suo motu raised, the respondent must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. He relied on the following cases IMAH VS OKOGBE (1993) 9 NWLR (Pt 316) 156, OLUBODE V SALAMI (1985) 2 NWLR (Pt 7) 282, MORA VS NWALUSI (1962) ALL NIR 681, ATOYEBI Vs GOV OYO STATE (1994) 5 SCNJ 62 AT 84, IBRAHIM VS JSC KADUNA STATE (1998) 14 NWLR (Pt 584)1, OGEMBE VS USMAN (2011) 17 NWLR (Pt 1277) 638, EFFIOM & ORS VS CROSS RIVER STATE, INEC & ANOR and LEADERS OF COMPANY LTD & AN OR VS BAMAIYI

(2010) 18 NWLR (Pt 1225) 329.

Learned appellant’s counsel concluded that by the purported allegation of the Court below what miscarriage of justice has been shown to have been caused? He said the answer to this poser is none. He said even before the trial Court made a finding of fact relating to Hauzi it had hitherto made a finding of fact that there was no evidence to substantiate the claims of the respondent at the trial Court.

It is also necessary to put the records straight, that is to say that the Court below never raised an issue suo moto. But what the Court below stated in its findings at page 81 of the records is thus:
“Amazingly, the trial Court on page 19 lines 22-23 of the same record of proceedings on its own imported/introduced the issue of Hauzi and decided to administer oath on the defendant stating that he is in possession of Hauzi…”
And what the trial Court did is contained at page 44 lines 22-23.

After evaluating the evidence of PW1 to PW6 the trial Court came to the conclusion that all the witnesses brought by the plaintiff have different and conflicting

statements. And the trial Court held thus;
“The Court will therefore administer oath on the defendant he is in possession of Hauzi and the text has stated…”

The lower Court was right when it found that the trial Court imported/introduced the issue of Hauzi and decided to administer oath on the defendant. This is because there was no basis upon which the trial Court will apply Hauzi hence witnesses have testified for the plaintiff. If the trial Court is satisfied that all the witnesses brought by the plaintiff have different and conflicting statements, the position of Islamic law when there are two or more conflicting evidence is as follows:
… (Arabic citation)
Meaning: if there arises conflict/difference in two pieces of evidence in respect of a subject matter in the same place such as where one evidence claims that the thing happened at a given time and the other says that it did not happen, the Court will rely on the one which appears more just (credible).
More so, it is trite principle of common law that, two pieces of evidence contradict one another when they are themselves inconsistent. On the other hand, a

discrepancy may occur where a piece of evidence stops short of or contains little more than what the other piece of evidence says or contains. See Jeremiah V State (2020) 14 NWLR (Pt 1320) 248.
The law does not insist that there must be no contradictions in the evidence of the witnesses. But it is well established principle that the contradictions by the witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole or as to the reliability of such witnesses. On the other hand, where witnesses give evidence in the same manner word to word there is every tendency that they are tutored witnesses. A critical examination of the evidences of PW1 to PW6 will reveal that there are no material contradictions. The lower Court was right when it relied on their evidence in support of the claim that the respondent loaned the disputed farmland to the appellant.

Furthermore, on issue four the appellants counsel submitted that at page 82 lines 15-19 of the records the Court below stated thus;
“…The identity of the disputed farmland was not in issue before the trial Court because the boundaries of the

disputed farmland were well stated at page 1 of the records of proceedings by the plaintiff. The defendant’s counsel did not state different boundaries all together except with little modification as to conflicting, demarcation…”

The appellant’s counsel submitted that contrary to the above, the boundaries stated by the parties were mutually conflicting in nature. The boundaries as stated by the respondent in his claims before the trial Court at page 26 of the records runs thus
A. North is bounded by a stone and the farm of Isah and Musa Baushe’s farm.
B. South by the farm of Kango before Mai bought it.
C. East is bounded by the farm of Musa Baushe before Mai bought it.
D. West is bounded by the farm of Musa Audu. Based on this, I am therefore urging this Honourable and just Court to order him to give me back my farm. This is my claim.

Learned counsel submitted that the boundaries stated by the appellant in the appellant’s reply to the claims of the respondent before the trial Court at page 28 lines 1-13 of the records shows conflicting boundaries and it reads thus;
“…at the front towards the East,

because at the East Muhd Audu is the owner of the farm and of the South is demarcated by a stone…”

Learned counsel submitted that this shows real conflict and not what the Court below simply termed as slight modification. And that none of the respondent’s witnesses gave evidence as to the boundaries of the disputed farmland. The issue of not laying any evidence on the boundaries of the disputed farmland is a matter of proof and not of technicality as wrongly held by the Court below. He submitted that our jurisprudence is replete with plethora of authorities on the duties imposed on a claimant to prove the boundaries of the subject matter in dispute. He relied on the following cases:
MINISTRY OF LANDS & HOUSING BAUCHI STATE & ANOR VS TIRWUN (2017) LPELR-43314 (CA),
AUTA VS IBE (2003) LPELR 640 (SC),
MAFULUL & ORS VS TAKWEN & ORS (2018) LPELR-45635 (CA)

In his response, the respondent’s counsel submitted that the Court below was right in holding that the appellant’s counsel did not state a different boundary all together except with little modifications as to conflicting boundaries. He said the identity of

the land in dispute as counter claimed by the appellant’s counsel at the trial Court does not state in clear terms an entirely different boundaries from that stated in the respondents claim at the trial Court. He relied on the case of BIRI VS MAIRUWA (1996) 8 NWLR (Pt 467) 425, where this Court held per A. B. WALI JCA(As he then was).
“It is fundamental in Islamic law that every claim must be stated in clear terms or clear statements and in the case of land its clear boundaries and location must be stated.”

Learned counsel submitted further that where the identity and location of the land in dispute is well known to the disputants, the issue as to proof of the identity does not arise. He relied on the case of AKINTERINWA VS OLADUNJOYE (2000) 2 NSCQLR (Pt 1) 153. Learned counsel argued that since the defendant/appellant’s counsel has denied the plaintiff/respondent’s claim at the trial Court and proceeded to reply to the claim by modifying parts of the boundaries, then the defendant/Appellant is duty bound to lead credible evidence in support of his counter claim but the defendant/appellant elected not to call any witness in support of

his counter claim. Only to complain now that the Court below acted on a conflicting claim. On the procedure dealing with conflicting claim he cited the case of MALA BABA VS BABA MOHAMMED (2007) 3 SLR 184. Learned counsel concluded that the Court below was right in holding that the identity of the disputed farmland was not in issue before the trial Court. The boundaries of the disputed farmland and its location was well stated at page 26 of the records by the respondent and same was neither challenged nor controverted in evidence by the defendant at the trial Court.

in his claims, then his explanation or claim cannot be relied upon. Secondly, if he fails to present evidence, his claim will not be considered except where another person presents evidence of the boundaries.
The position under Islamic law is in all fours with the common law principle where a claimant fails to plead and establish the identity of the land to which his claim of ownership or title relates, whatever evidence whether oral or documentary he produces at the trial and however cogent and credible the evidence might appear it cannot in law ground a declaration of title in his favour, see KARIMU VS LAGOS STATE GOVERNMENT (2012) 5 NWLR (Pt 948) 210.

claim does not help the course of justice. A valid claim should, therefore indicate the exact amount of money which the plaintiff intends to claim from the defendant, the size, location, and boundaries of the parcel of the land he wishes to claim about as well as the full description of any property which the plaintiff intends to claim. See ALH SEMABU ABEBI MAISHINGIBA V ALH ALABI OPOBIYI (1982) FCA/K/7182 judgement delivered on 23 November…”

In its consideration of page 45 lines 7-8 of the records the trial Court stated thus;
“2. Even the boundaries stated by the plaintiff are not the same with the boundaries of the farm.”

modifications as to conflicting demarcations nowhere in both English and Hausa records it is shown that the trial Court has visited the disputed farmland to account otherwise. The boundaries for the plaintiff/appellant are illegal and un-Islamic.
Thus it is prohibited for a judge to deliver judgement when he has no evidence placed before him through any of the known forms of testimony/admission. See SAFETI V SAFETI (2007) 2 NWLR (Pt 1017) 56 CA.”

It is crystal clear that the findings made by the trial Court are not supported by any evidence adduced before the Court. The lower Court is correct in its findings that the identity of the disputed farmland was not in issue before the trial Court because the boundaries of the disputed farmland were well stated at page one of the record of proceedings by the plaintiff. The defendant’s counsel did not state different boundaries all together except with little modifications as to conflicting demarcation.

It is trite principle that where the identity of the land in dispute is not in issue between the parties, no onus naturally lies on a claimant for declaration of title to

such land to prove the said identity as the fact is not an issue for determination between the parties in the suit. In other words, the burden of proof is obviated where the identity and extent of the land in dispute was never in issue.
See ALHAJI GONI KYARI VS ALH. CIROMA ALKALI & ORS (2001) 8 SCM 43,
BOSINDE AYUYA & 4 ORS VS CHIEF NAGHAN YONRIN & 3 ORS (2011) 4 SC (PT. 11) 1.
BENEDICT OTANMA VS KINGDOM YOUDUBAGHA (2006) 1 SCNJ 94.
IREJU NWOKIDU & 30 ORS VS MARK OKANU & ANOR (2010) 1 SC (pt.1) 136.
ALH. BELLO MAIGARI & ORS VS ALH. SANI MAILAFIYA (2010) LPELR- 3704 (CA).
MANI VS SHANONO (2006) 4 NWLR 9pt. 969) 132.
Consequently, issue four is resolved against the appellant.

The lower Court was right when it allowed the appeal and reversed the judgement of the trial upper Sharia Court Wasagu in suit No: USC/WSG/CV/63/2016. It is not the duty of the Court to conduct cases for litigants. A Court being an umpire should not descend into the arena to take part in the legal battle between the parties. And where a Court descends into the arena of conflict and compromises its impartial position, the

resultant decision cannot be regarded as a just decision.

In conclusion having resolved all the issues against the appellant, the appeal is completely bereft of any merit. It is not only frivolous but vexatious. It is accordingly dismissed. The judgment delivered on the 22nd Day of June, 2018 in suit No: KB.HC.66A.2017 is hereby affirmed. A cost of One hundred thousand naira (N100,000.00) is awarded against the appellant in favour of the respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, ABUBAKAR M. TALBA, JCA. I am in agreement with the reasoning and conclusion reached in disallowing the Appeal as same is adjudged un-meritorious. I abide by all the consequential orders made thereto.

Appearances:

ABDULLAHI For Appellant(s)

I WASAGU, holding brief for A. G RAMBO For Respondent(s)