HAJIYA FANTA KUR & ORS. V. ALI KINDIL FANNAMI
(2010)LCN/3779(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of May, 2010
CA/J/269/2005
RATIO
ISLAMIC LAW: HOW IS A CLAIM IN MOVEABLE AND IMMOVEABLE PROPERTY DISCHARGED
It is an established general principle of Islamic Law, for both moveable and immoveable property, that the claimant as the plaintiff, in order to discharge the burden of proof on his shoulders, must present in court, two male unimpeachable witnesses; or one male witness and two female unimpeachable witnesses; or one male with a Claimant’s Oath; or two females with a claimant’s Oath. Where the plaintiff fails to bring the witnesses in proof of his claim, the defendant, if he denies the claim, would be given an Oath of denial to discharge himself from the plaintiff’s allegation: See page 34 of IHKAMUL AHKAM, short Commentary on Tuhfatul Hukkam of the English translation; BELI VS UMAR (2005) 12 NWLR (Pt. 939) 325 at 335 C – D; BABA VS ARUWA (1986) 5 NWLR (Pt. 44) 774 at 786; HADA VS. MALUMFASHI (i993) 7 NWLR (Pt. 303) 1 at 17C and NASI VS HARUNA (2002) 2 NWLR (Pt. 750) 240. It is only the testimonies of the witnesses that are regarded as evidence, as the statement of parties made in court, under Islamic Law, unlike English Law, are not regarded as evidence but as statements of claim and. statements of defence. See JATAU VS MAILAFIYA (supra) at 690H, per Uthman Mohammed JSC; and MOGAJI VS ALAMU (supra), 105. PER ABUBAKAR DATTI YAHAYA, J.C.A.
ISLAMIC LAW: WHETHER ADMISSION IS RECOGNIZED BY ISLAMIC LAW
The position of Ruxton that admission is recognized by Islamic law as judicial proof, has been applied by the Supreme Court in HADA VS MULUMFASHI (supra) where Wali JSC at pages14- 15 of the report held:-
“It is trite law in Shariah that, a free admission made by a mature and sane person against his interest in favour of another is binding and enforceable against the maker. See pages 39- 40 Vol. 1 Fathul Aliyyal Malik wherein admission is given the following definition and effect:
‘Admission is a binding declaration by its maker in favour of another. It must be clear and devoid of ambiguity.”
Also in Bidayatul Mujtahid Vol. II page 352 it is stated that:”Where an admission (its wording and context) is Clear, it is binding on the court to act upon it.”
From this authority, it is clear that for admission or ‘Iqrar’ to be acceptable, it must have been clear, unambiguous, made by a person of sound mind, without compulsion. 1n BABA VS BABA (1991) 9 NWLR 248, the Court of Appeal per Okunola JCA of blessed memory, held that:-
“The position under Islamic Law is similar to that of common law in that a confession or admission by a sane adult binds him, See MUKTASSAR KHALIL VOL II P 133.” See also WALI VS IBRAHIM (1997) 9 NWLR (Pt, 519) 160 at 168.
Therefore, once the admission was forced out of the party, or that he was not sane or was not an adult or is ambiguous so that it cannot be properly deciphered, then judgment- cannot be entered on its basis. See SIRAJUS SALIK, SHARHU VS – HALUL MASALIK OF SAYYID UTHMAN AL MALIKY VOL 11 P-162, Admission is regarded as the best form of evidence as it is from a direct source, as seen from the prophetic hadith which says;
“Admission is a better form of evidence than the calling of witnesses to testify.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICE
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
1. HAJIYA FANTA KUR
2. BULAMA KAKA
3. ALHAJI MODDIBO MUSTAPHA Appellant(s)
AND
ALI KINDIL FANNAMI Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Borno State High Court in its appellate jurisdiction, delivered on 15th day of December, 2005, affirming the decision of their trial Upper Area Court 1, Borno.
On the 15th of May, 2001, the complainant Ali Kindil Fannami, now the respondent; lodged a complaint before the Borno Upper Area Court 1, against the defendants Hajja Fanta Kur, Bulama Kaka and Alhaji Modibbo who are now the appellants, praying the trial court to set aside the sale of the house belonging to Hajja Fanta, to Alhaji Modibbo. He alleged that he had been living in the house for 14 years and was paying rent. Hajja Fanta (1st appellant) requested him to stay in it and promised to sell it to him any time she evinced an intention of selling the house. He was therefore taken aback when the 2nd appellant asked him to vacate the house as it had been sold to the 3rd appellant. Hence, his complaint to set aside the sale.
Although, the 1st appellant initially denied it, she later admitted that she had indeed promised to sell the house to the respondent whenever she wanted to. She denied that she had exchanged any house with the 3rd appellant. She offered the house to the respondent to purchase at the cost of N150,000. On that basis, the trial Upper Area Court gave judgment to the respondent and confirmed the sale of the house to him at the cost of N150,000.
The appellants being dissatisfied with the judgment, appealed to the High Court in Maiduguri on 5 grounds of appeal. On the 15/12/2005, the High Court delivered its judgment, dismissed the appeal and affirmed the decision of the trial court.
Being aggrieved, the appellants have appealed against that judgment on two grounds of appeal vide their Notice and Grounds of Appeal filed on the 16/12/2005. The parties have filed their respective briefs of argument.
In the Appellant’s brief of argument filed on the 9/6/2006, settled by his counsel M. E. Oru, one issue was identified for determination. It is:-
Whether or not under Islamic Law, there was judicial proof before the lower Court to enable the Respondent to be entitled to judgment.
The Respondent’s brief was filed on the 28/9/2006 but deemed filed with leave of court, on the 26/2/2007. In it, H.M. Dlakwa of counsel to the respondent, identified one issue for determination to be:-
Whether or not admission is known and accepted as a means of proof under Islamic law and procedure?
In my view, the single issue identified each by counsel to the parties fall a bit short, taking into consideration, the grounds of appeal and the particulars. I think the more appropriate issue for determination is whether or not there was admission of the complaint before the trial court amounting to judicial proof in Islamic law.
The submission of counsel for the appellant on this, is that under Islamic Law, the evidence required in. proof of a claim is to be furnished through the testimonies of two unimpeachable witnesses, or one male and two or more female unimpeachable witnesses or one male and two females or more witnesses with claimant’s oath in either case. Reliance was placed on JATAU VS MAILAFIYA (1998) 1 SCNJ 48 at 57; BABA VS ARUWA (1986) 5 NWLR (Pt. 44) 774 at 786; ABDULLAHI MAFOLUKU VS USMAN ALAMU (1985) SLRN 105; MINTAR VS KORI (1989) 1 NWLR (Pt. 100) 718; MANU VS. MOHAMMED (1997) 11 NWLR (Pt.528) 323; BELI VS. UMAR (2005) ALL FWLR (Pt. 290) 1520 – 1528 -1530. RUXTON ON MALIKI LAW Para 1563, page 300; and IHKAMUL AHKAM, Short Commentary on TUHFATUL HUKKAM page 34.
Counsel contended that the record of proceeding did not show that the parties called any witnesses to testify or ordered by the court to be called by the parties. He placed reliance on JATAU VS, MAILAFIYA (supra) at 57, to submit that the statements of the Respondent and the Appellant at the trial Upper Area Court are not regarded as evidence, under Islamic law. Following this, he argued, there was no legal judicial proof before the trial court and the lower court was in error, when it affirmed the decision bf the trial court. This had occasioned a miscarriage of justice, he argued.
On admission, counsel submitted that unlike the common law, Islamic law does not recognize ‘admission’ as a means of proof and that it was erroneous for the lower court, to hold that the admission of the 1st appellant in her statement, amounted to an oath. Counsel urged us to allow the appeal, dismiss the Respondent’s claim or in the alternative, order a retrial before another competent court.
In Reply, counsel for the respondent, Mr. Dlakwa submitted that Admission is-indeed one of the ways of establishing judicial proof under Islamic law as can be seen in Ihkimiul Ahkam, short Commentary on Tuhfatul Hukkam, translated by USMAN DAURA; RUXTON ON MALIKI LAW at page 299 – 300 and JAURO DANBABA VS. MALLAM SALE (2004) ALL FWLR (Pt. 223) 1915 at 1921. He then referred to page 8 lines 22 – 34 and page 9 lines 1-20 to submit that they are admission by the appellants which entitled the trial court to decide the way it had.
On re-trial, counsel referred to the conditions enumerated in CHIEF OF AIR STAFF V. ORS VS. WING COMMANDER P.E. YEN (2005) 1 SCNJ 248 at 258 – 259, to submit that as they are absent here, re-trial cannot be ordered. He urged us to dismiss the appeal and affirm the decision of the lower court.
Before I delve into the merit, it is important to resolve the point raised by Mr. Dlakwa in the Respondent’s brief at page 2 thereof. He stated that Modibbo Mustapha, the 3rd appellant herein, had filed an appeal against the decision of the trial Upper Area Court to the High Court ‘claiming’ to have filed it for himself and on behalf of the 1st and 2nd appellants. He said that the 1st and 2nd ‘purported’ appellants never appeared at the High Court “nor gave their consent to the appeal.” Counsel went on to say that the 3rd appellant has filed an appeal to this court purporting to have filed same for himself, Hajja Fanta Kur and Bulama Kaka.” He stated that Modibbo Mustapha is the only appellant in this appeal and referred to the 1st and 2nd appellants by their names.
I think that counsel should know better than go this way. The identities or competence of the parties were never raised at the court below or made a ground of appeal in this court. He cannot therefore maintain that stance. Furthermore, the Notice and Grounds of Appeal filed, has:
HAJIA FANTA KUR
BULAMA KAKA, and
ALHAJI MODIBBO MUSTAPHA
As the ‘Appellants’. The Notice states that “TAKE NOTICE that the appellants being dissatisfied with the judgment of the High Court of Justice, Maiduguri delivered on 15th day of December, 2005 do hereby appeal to the Court of Appeal Jos upon the grounds set out…
The Notice and grounds of appeal was signed by MARCEL ORU Esq., as the Appellant’s counsel. For this, all the three persons named therein are the appellants in this court and Mr. Dlakwa has no right to state as he did, that he ‘will be referring to Modibbo Mustapha as the only appellant in this appeal. There is nothing challenging the Notice and Grounds of Appeal before us, and it is therefore binding onus, including Mr. Dlakwa. All three named persons are appellants in this court.
Now going to the issue for determination. It is an established general principle of Islamic Law, for both moveable and immoveable property, that the claimant as the plaintiff, in order to discharge the burden of proof on his shoulders, must present in court, two male unimpeachable witnesses; or one male witness and two female unimpeachable witnesses; or one male with a Claimant’s Oath; or two females with a claimant’s Oath. Where the plaintiff fails to bring the witnesses in proof of his claim, the defendant, if he denies the claim, would be given an Oath of denial to discharge himself from the plaintiff’s allegation: See page 34 of IHKAMUL AHKAM, short Commentary on Tuhfatul Hukkam of the English translation; BELI VS UMAR (2005) 12 NWLR (Pt. 939) 325 at 335 C – D; BABA VS ARUWA (1986) 5 NWLR (Pt. 44) 774 at 786; HADA VS. MALUMFASHI (i993) 7 NWLR (Pt. 303) 1 at 17C and NASI VS HARUNA (2002) 2 NWLR (Pt. 750) 240. It is only the testimonies of the witnesses that are regarded as evidence, as the statement of parties made in court, under Islamic Law, unlike English Law, are not regarded as evidence but as statements of claim and. statements of defence. See JATAU VS MAILAFIYA (supra) at 690H, per Uthman Mohammed JSC; and MOGAJI VS ALAMU (supra), 105.
It is not controverted, that the respondent as plaintiff in the trial Upper Area Court, did not call any witnesses nor did the court order for same. The appellants as defendants in the trial Upper Area Court, initially denied the claim that the 1st appellant promised to sell the house to the respondent, and that the house had been exchanged with that of the 3rd appellant. But later on, the fear of God and the de sire to tell the truth, drove the 1st appellant as the owner of the house in question, to admit the claim of the respondent. At pages 8 – 9 of the record of proceedings, she stated thus:
“Court to first defendant:- What do you want to say?
First defendant to Court:- What I want to say is that, I am saying this between myself and God… for the sake of Allah.
the way the plaintiff Ali Kindil explain, I am the one who asked him to stay in my house because I am living in a very far place and fearing my house not spoil. And I am the one who promised him that whenever I want to sell the house I will sold (sic) to him and I will not sold (sic) to a different person unless if he refuses it. He stayed in my house for 14years. Up to today I will not sell my house to any other person unless Ali Kindil … I am telling the court that the house belongs to me… I am informing the court that I sold my house to Ali Kindil in the sum of N150,000.00 and Modibbo there is nothing between us; if he thinks he has something over me, let him sue me.”
On his part, the third appellant also told the court that it was not true that there was an exchange of houses between him and the 1st appellant in these words:-
“Truly speaking, I am asking for forgiveness from the court because we did not change a house.” Clearly therefore, the 1st appellant had admitted the claim of the respondent that she promised to sell the house to him any time she was going to sell it. She further admitted that, she did not exchange the house with 3rd appellant who also admitted this. The admission of the claim by the 1st appellant, was against her interest. The author of TABSTRATUL HUKKAM Note to FATHUL AHALI AL-MALIK, Volume 2 page 41 states:
“Admission may be against one’s interest or another person’s interest, or both simultaneously if he makes admission against his interest.” He would not be allowed to retract it.
In Islamic Law, ‘admission’ is certainly one of the means of proving a claim, contrary to the submission of learned counsel for the appellant. I refer to Ruxton on Maliki Law at page 210, where the learned author opined thus:-
“The Judge will not enter judgment in favour of any of the litigants until after the claimant has stated his case. The Judge will then ask the defendant to respond to it: If he (the Defendant) admits the claim, then there is no problem; but if he denies, the plaintiff shall be called upon to adduce evidence in proof of his claim.” (Underline mine).
The position of Ruxton that admission is recognized by Islamic law as judicial proof, has been applied by the Supreme Court in HADA VS MULUMFASHI (supra) where Wali JSC at pages14- 15 of the report held:-
“It is trite law in Shariah that, a free admission made by a mature and sane person against his interest in favour of another is binding and enforceable against the maker. See pages 39- 40 Vol. 1 Fathul Aliyyal Malik wherein admission is given the following definition and effect:
‘Admission is a binding declaration by its maker in favour of another. It must be clear and devoid of ambiguity.”
Also in Bidayatul Mujtahid Vol. II page 352 it is stated that:”Where an admission (its wording and context) is Clear, it is binding on the court to act upon it.”
From this authority, it is clear that for admission or ‘Iqrar’ to be acceptable, it must have been clear, unambiguous, made by a person of sound mind, without compulsion. 1n BABA VS BABA (1991) 9 NWLR 248, the Court of Appeal per Okunola JCA of blessed memory, held that:-
“The position under Islamic Law is similar to that of common law in that a confession or admission by a sane adult binds him, See MUKTASSAR KHALIL VOL II P 133.” See also WALI VS IBRAHIM (1997) 9 NWLR (Pt, 519) 160 at 168.
Therefore, once the admission was forced out of the party, or that he was not sane or was not an adult or is ambiguous so that it cannot be properly deciphered, then judgment- cannot be entered on its basis. See SIRAJUS SALIK, SHARHU VS – HALUL MASALIK OF SAYYID UTHMAN AL MALIKY VOL 11 P-162, Admission is regarded as the best form of evidence as it is from a direct source, as seen from the prophetic hadith which says;
“Admission is a better form of evidence than the calling of witnesses to testify.”
Learned counsel for the appellant submitted at page 6 of the brief that the lower court had held that the admission of the 1st appellant, amounted to an oath. I am unable to agree because that submission is not borne by the record. The lower court said no such thing. At page 35, lines 18 – 21 of the record, the lower court held:
But where there is an express admission of the plaintiff’s claim by the defendant the law does not require proof by evidence. What is admitted requires no formal proof by calling witnesses.
It then went on at page 36 lines 9 – 11 of the record of proceeding to say:
“In short, we do not agree with Oru Esq., that the trial court entered judgment in favour of the respondent without judicial proof or oath under Islamic law.”
From the above, it cannot be correctly posited, that the lower Court said that admission amounted to an Oath. It was infact counsel for the appellant who at page 14 paragraph 4.3 of the record (the appellant’s brief at the lower court), submitted that the trial court erred in law when it “entered judgment in favour of the respondent wwas right since there was such judicial proof.
In the light of all of the above and the authorities, I without judicial’ proof or oath under Islamic Law.” It was this ‘submission that the lower court disagreed with, and said so. The lower court old that there was clear and unambiguous admission by the 1st appellant (the owner of the house in dispute) of the claim of the respondent, which the two courts below rightly acknowledged and acted upon. The 1st appellant admitted selling the house to the respondent at the purchase price of N150,000, in the face of the trial Upper Area Court, which gave effect to the sale by ordering Ali Kindil (respondent) to:
“…pay her. The house belongs to Ali Kindil. The agreement for the sale between them she confirmed.”
The clear admission binds the appellants and they would not be allowed to recant. See SAMA’ILA DAN TANKO VS DANLAMI MAIDAKE (1971) NNLR 116 which stated that where a vendor agrees to sell property to A, but in breach of the promise, sells to B, the purported sale to B, may be put aside and the vendor would be asked to fulfill his agreement. Here 1st appellant made the promise to sell to the respondent and since she has done so, there is no problem but she will not be allowed to go back on the sale.
In consequence, the lone issue for determination is resolved in favour of the respondent. The appeal lacks merit and it is dismissed. The judgment of the lower court which confirmed the judgment of the trial Upper Area Court Maiduguri, is hereby affirmed.
No order as to costs.
HON. JUSTICE BODE RHODES-VIVOUR, J.C.A.: I have read in draft the judgment prepared by my Learned Brother Yahaya, JCA. I entirely agree with his Lordships reasoning and conclusion that the appeal lacks merit and should be dismissed.
UZO NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother Yahaya, JCA. The sole issue for determination was:
“Whether or not there was admission of the complaint before the trial Court amounting to judicial proof in Islamic Law?”
Hajja Fanta Kur had as 1st Defendant to the claim admitted that she infact agreed to give the Plaintiff Ali Kindil the first option to buy the house the subject matter of this suit. To this end the Plaintiff Ali Kindil had lived in that house for 14 years waiting for when he would be given that option to buy.
Admission of the facts by Hajja suffices and does not need further proof.
The admission by Hajja is binding on all parties. The Lower Courts were right and I hereby affirm the decision of the lower Court. I also dismiss this appeal and abide by the orders as to costs in the lead judgment.
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Appearances
M. E. Oru;
T. IjabikenFor Appellant
AND
H. M. Dlakwa;
J.M. ShallangwaFor Respondent
