In The Court of Appeal of Nigeria

On Thursday, the 10th day of January, 2002




RABIU DANLAMI MUHAMMAD   Justice of The Court of Appeal of Nigeria

IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

SULE AREMU OLAGUNJU   Justice of The Court of Appeal of Nigeria





    2. ESTATE OF LATE ALHAJI SHARU Respondent(s)


  1. T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment): At the Upper Area Court No.4, Kawaji, Kano (trial court), one Alhaji Auwalu was the plaintiff. He was seeking that court’s assistance to distribute the estate of late Alhaji Sharu Balarabe, amongst his heirs.
    The trial court acceded to the request and directed that all the heirs should attend the court on 25/4/85. On that date, all the heirs were present in court. The deceased, the plaintiff claimed, left behind: a widow, Hajiya Umma; six children, four males and two females.
    The deceased left some movable and immovable properties including some raw cash.
    One Hajiya Sa’a, who is now the appellant, claimed that she was married to the deceased. And at the time of his death, she was observing her idda (waiting period) in his favour. This was flatly denied by the first set of heirs, including the plaintiff. After taking evidence, the trial Judge found that it was necessary for the appellant to swear to an oath, that she was still married to the deceased at the time of his death. The appellant swore in the presence of the plaintiff and other heirs. However, the plaintiff and remaining coheirs claimed after the oath that at the time the deceased married the appellant, he was mentally sick. At the end, the trial Upper Area Court Judge found that the appellant was legally married to the deceased and he was physically well at the time of the marriage. The trial court went ahead and distributed the deceased’s estate amongst the heirs including the appellant. The appellant was however, dissatisfied with the distribution and appealed to the Sharia Court of Appeal Kano that one Hajiya Umma, 1st respondent, ought not to have been given share out of the deceased’s estate, as there was no subsisting marriage between her and the deceased, at the death of the deceased. The lower court exercised powers conferred upon it by Order 3 rule 7 of the Sharia Court of Appeal Rules, 1960, reviewed the record, took further evidence and at the end, confirmed the trial court’s judgment.
    Aggrieved further, the appellant filed her appeal to this court.
    Briefs were filed and exchanged. In his brief, learned Counsel for the appellant formulated the following issues:
    “(a) Whether the trial Upper Area Court’s decision affirmed by the Sharia Court of Appeal Division One, is judicially sound and satisfactory and ought not to be set aside by the Court of Appeal, when:
    (i) the appellant had established before the Sharia Court of Appeal, that some of her witnesses were
    wrongly rejected and that some of the respondents’ witnesses were wrongly admitted.
    (ii) the appellant had also established that if the evidence wrongly rejected were admitted, and the one
    wrongly received were jettisoned, the case would have been decided in her favour by the trial Upper Area Court.
    (b) Whether the Sharia Court of Appeal was right in closing its eyes, to the latent defects in the proceedings of the trial Upper Area Court, and confirming same as being proper and correct.
    (c) Whether on the totality of evidence, the decision of the Upper Area Court Kano, as affirmed by the Sharia Court of Appeal Kano, was not against the weight of evidence.
    (d) Whether the decision of the Sharia Court of Appeal, was wrong, when it admitted the testimonies of the respondents’ further witnesses and act upon same in their judgment.”
    The respondents’ counsel formulated two issues as follows:
    “1. Whether the Sharia Court of Appeal, was right in allowing the appellant to call additional witnesses?
    2. Whether on the totality of the evidence adduced before the trial court and the Sharia Court of Appeal, the appellant had established her claim against the respondent?”
    Let me state from the outset that, I prefer to adopt the respondents issues for determination in treating this appeal. This is for the simple reason of relevance and convenience. For instance, issues (a), (i), (ii); (b); and (c) can conveniently match with respondent’s issue No.2, as they both border on evaluation of evidence. Issue (d) of the appellant’s issues matches issue No.1 of the respondent’s issues.
    While making his submissions on issues (a) – (c) which correspond to issue 2 of the respondent’s brief, learned Counsel for the appellant, argued that the appellant had established before the lower court that some of her witnesses were wrongly rejected or wrongly admitted by the trial court, and that the case ought to have been decided in her favour. He cited and relied on what is contained on pages 46 – 48 of Ihkam Al-Ahkam. He further argued that, the mere fact that the appellant and the witness were not in speaking terms, would not be enough to reject the evidence of that witness.
    On his issue (d) learned Counsel submitted that it was wrong of the lower court to call on the respondent to adduce evidence in support of the existence of her marriage, while in the actual sense, the genesis of the dispute was not marriage but entitlement to (one eighth) share of the inheritance, hence, it was the appellant that should have been called upon to adduce evidence in proof of her claim, that the respondent was not a wife to the deceased at the time of his death.
    In making his submission on issue No.2, which is on evaluation of evidence, learned Counsel for the respondent argued that from the totality of the evidence adduced, both at the trial and lower courts, the appellant did not establish her case as required under Islamic Law. He cited and relied on the case of Baba v. Aruwa (1986) 5 NWLR (Pt. 44) 774. He argued further that, once hostility is established between a witness and the person against whom he is testifying, the evidence of such witness is inadmissible under Islamic Law. He referred to Ruxton’s translation of Mukhtasar Al-Khali.
    On issue No.1, learned Counsel for the respondents submitted that by virtue of Sharia Court of Appeal Law of Kano State, Order 3 rule 7(2)(a), 1960, the Sharia Court of Appeal was right in correcting the error of the trial court by allowing the appellant to call more witnesses and by exhausting her on bringing witnesses.
    After having carefully studied the printed record of appeal and submissions of learned Counsel for the respective parties, it is my humble observation thatthe law has for long, been settled that evaluation of evidence is a special area preserved for the trial court that had the opportunity of hearing, watching and assessing the witnesses that testified. Rarely do appeal courts interfere with that sole opportunity preserved for the trial court. See Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371; Makinde v. Ojeyinka (1997) 4 NWLR (Pt. 497) 80; Okwara v. Okwara (1997) 11 NWLR (Pt. 527) 160.
    In the light of the above authorities, I am afraid I cannot tamper with the evaluation of evidence, conducted by both the trial and the lower courts. Accordingly, issues (a); (i), (ii); (b); and (c) which correspond with respondents issue No.2, has no merit and is hereby dismissed.
    On issue (d) which corresponds with respondents issue No.1, I find it pertinent to reproduce below, what Order 3 rule 7(2) of the 1960 Sharia Court of Appeal Law provides:
    “7.(2) The court shall not normally re-hear or re-try the case, but if it shall be necessary for the purpose of elucidating or amplifying the record of the court below, and arriving at the true facts of the case the court may rehear or re-try, the case in whole or in part and may;
    (a) allow or require, witnesses to be called, whether  or not they gave evidence before the court below;
    (b) …………………………………….
    (c) …………………………………….
    (e) ………………………………………
    (f) ………………………………………
    (g) do or order, to be done anything which the court below has power to do or order;
    (h) generally, exercise any of the powers conferred upon it by section 10 of the Law.”
    (Italics supplied for emphasis)
    I think the reason why the lower court had to call for more witnesses from the appellant, was made clear in the record. Page 78 thereof states, inter alia:
    “The court then notified the parties to the case ,that judgment cannot be passed due to the reasons mentioned earlier. However, to ensure justice we will use our light under Order 3 Rule 7 of the Sharia Court of Appeal Rules 1960, and allow the appellant to produce more witnesses if she has any. When we asked the appellant, whether she has more witnesses, she mentioned Danjuma Durumin Arbabi and Malam Audu Bacirawa, who were not presented before any court.
    The counsel who is handling the case on behalf of the respondent’s counsel, asked the appellant whether those are her only witnesses, and she answered in the affirmative. The court then issued summons for their appearance on 3-11-93.”
    In my view, the lower court was quite right in so directing, as it had a responsibility to ensure that Justice was done to all the heirs in the case, and that was the intent behind the enactment of section 7 of the Order referred to above. For the above reasons, issue (d) of the appellant’s issues must also fail. It is hereby, dismissed.
    In the final analysis, this appeal lacks merit. And, I must reiterate the practice that it is not easy for the Appeal Court, to overturn concurrent decisions of two lower courts and it rarely does so. See University of Calabar v. Essien (1996) 10 NWLR (Pt. 477) 225; Magatakarda v. Isa (1969-1989) 1 SLRN 159; Chinwendu v. Mbamali (1980) 3-4 Sc.
    This appeal is accordingly, dismissed by me. Looking at the nature of the appeal, I order each party to bear own costs in the appeal.

    R. D. MUHAMMAD, J.C.A.: I have had the opportunity, of reading before now, the judgment just delivered, by my learned brother, I.T. Muhammad J.C.A. I am in complete agreement with his reasoning and conclusion. I see no reason why we should tamper with the evaluation of the evidence, adduced at the Upper Area Court. Evaluation of evidence, is the exclusive preserve of the trial court. It had the opportunity of seeing and watching, the demeanour of the witness.
    It is better placed to correctly evaluate the evidence. In any event, the appellate court rarely interferes with the concurrent decision of two lower courts, except in very special circumstances. There is no special circumstance in this case, to warrant us disturbing the concurrent decisions of the two lower courts. The appeal fails and is dismissed by me. No order as to costs.

    OLAGUNJU, J.C.A.: I agree.
    Appeal dismissed.



  1. G. Waru, Esq. (holding the brief of A. Malami Esq.)For Appellant



  1. A. Sadik Esq.For Respondent


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