HANTSI MAMMAN SHINGI v. ABUBAKAR BANDADO
(2018)LCN/12336(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of December, 2018
CA/S/85/2017
RATIO
DEFENCE: THE DEFENCE OF ‘HAUZI’
“Hauzi is defeated where as in this case, there is evidence that the property in question was given as loan, or on trust, or safe keeping. In other words, hauzi does not apply to or affect any property in the possession of another no matter how long such property is or remains in his possession if it is on loan, pledge, trust, mortgage, or safe keeping or in any of the other exceptions earlier stated in this judgment. In such situations, the defence of prescription (hauzi) is not open to the defendant. Therefore, the initial safe keeping by the appellant’s father and the subsequent loan or borrowing of the land to the appellant for use, defeat the defence of ‘Hauzi’ strenuously argued by the appellant?s learned counsel. The appellant cannot, in the circumstance, rely on Hauzi to claim ownership of the land or to deprive the respondent the right to his land.” PER AMINA AUDI WAMBAI, J.C.A.
ISLAMIC LAW: LAND INHERITANCE BY ‘HAUZI’
“It is therefore a settled position of Islamic law that where a person has been in peaceful enjoyment or possession of land without challenge for 10 years he acquires a title by Hauzi (Prescription) against any person who claims to be the true or original owner of such land and who stood by without taking any action to reclaim his land during that period. Put more clearly, a person who sees somebody in possession of his or her property and claiming and using the same as his own over a long period without any objection from (the true owner) loses his ownership and that other person in possession becomes the owner. However, hauzi is defeated by certain factors and these include: (1) blood relationship, fear of harm from these authority. (2) Minorship. (3) The person in possession was put there by the claimant either as a free or paying tenant. (4) The person in possession is put in there as a trustee. (5) The claimant is a partner or co-proprietor to the person in possession. In enumerating some of the exceptions to ‘Hauzi’ Coomasie JCA of blessed memory (as he then was) in theHADA V MALUMFASHI’S (Supra) listed the following exceptions: “(a) Cogent reasons are adduced for not complaining in time, for example blood relationship or fear of harm from authority; (b) The claimant is a minor; (c) The person in possession was put in possession by the claimant either as a free or paying tenant; (d) The person in possession is put in possession as a trustee; (e) The claimant is a relative, or a partner or co-proprietor to the person in possession; and (f) In the case of a house, the possessor is in permissive occupancy.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
HANTSI MAMMAN SHINGI Appellant(s)
AND
ABUBAKAR BANDADO Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
The judgment of Hon justices Muhammed Sa’idu Sifawa and Malami Umar Dogon Daji in their appellate jurisdiction delivered on the 29th December 2017 gave rise to this appeal. In the said judgment, the Sokoto State High Court (now called the Court below) dismissed the appellant’s appeal and affirmed the concurrent decisions of the Upper Sharia Court Sokoto and the trial Sharia Court Dange which declared title to the disputed land situate at Dandutsi area in favour of the respondent and against the appellant.
The chequered history of this appeal before us commenced by the institution of the suit by the respondent as plaintiff before the trial Sharia Court Dange, for the return of his farmland, from the Appellant, which Court gave judgment in favour of the respondent. The defendant/appellant being dissatisfied, appealed to the Upper Sharia Court II, Sokoto which affirmed the decision of the trial Court. Still unhappy, Defendant/Appellant appealed to the Sharia Court of Appeal Sokoto which upturned the decision of the Upper Sharia Court II, Sokoto. Aggrieved, the respondent appealed to this Court on ground of absence of jurisdiction of the Sharia Court of Appeal. Allowing the appeal, this Court on the 25th April 2016, set aside the decision of the Sharia Court of Appeal and remitted the case to the Court below to hear and determine the appeal against the decision of the Upper Sharia Court II, Sokoto.
The dispute that triggered the institution of the suit by the respondent as plaintiff against the appellant as defendant, at the trial Court, was that after the demise of the appellant’s father, though the appellant returned to the respondent the farmland which respondent’s father gave to the Appellant’s father for safe custody on trust, same was upon request borrowed to the appellant for use but the appellant now refused to return the land to the respondent. The appellant however denied the claim and contended that part of the land was inherited by him from his father and the other part was purchased from the respondent. After hearing the evidence, the learned trial judge entered judgment for the respondent. Appellant being aggrieved, appealed to the Upper Sharia Court which dismissed the appeal and affirmed the decision of the trial Court.
Still unhappy, after the setting aside of the decision of the Sharia Court of Appeal, the appellant appealed to the Court below which also dismissed the appeal and affirmed the concurrent decisions of the two lower Courts. Still unrelenting and in a quest to ventilate his grievance, the appellant by a notice of appeal dated and filed on the 17th March 2017, appealed to this Court on the following two grounds to wit:
“GROUND 1
The Court below erred in law when it held that hauzi (prescription) does not apply in this case.
GROUND TWO
The Court below erred in law when it affirmed decision of the Upper Shari’ah Court II Sokoto which affirmed the decision of the Lower Shari’ah Court Dange, which was reached without any competent and credible witness testifying in accordance with the claim.”
M. U. Uwais of M. A. SAMBO & Co who settled the appellant’s brief of argument filed on 14th November 2017 distilled two issues from the two grounds of appeal, namely:
i. Whether the Court below was right when it affirmed the concurrent decision of the lower Courts which was reached per incuriam. (Distilled from Ground 2 of the Notice of Appeal).
ii. Whether the issue of prescription (Hauzi) does not apply in this case. (Distilled from Ground 1 of the Notice of Appeal).
The learned H. A. Muhammad together with Muhammad Adeleke, A.Z. Adeyi and two others who settled the respondent’s brief of argument filed on the 14th May, 2018 but deemed on the 16th May, 2018, adopted these two issues in the event of the failure of their preliminary objection filed on the 17th March, 2017 and argued at pages 5 to 7 of the respondent’s brief of argument.
It is necessary, as demanded by law, whenever a preliminary objection is raised to the competence of an appeal, to first consider and determine the objection before delving into the determination of the appeal. The Court is obliged to first consider and express its opinion on it one way or the other; whether it agrees with the respondent or not, before proceeding to consider the substantive appeal. The necessity for this is for the fact that a successful preliminary objection may have the effect of disposing the appeal. See FBN PLC V TSA INDUSTRIES LTD (2010) 15 NWLR (PT 1216) 247, Ogoja V. Offoboche (1996) 8 NWLR (Pt. 458) 48; Katto v. CBN (1991) 9 NWLR (Pt. 214) 126; ANPP V. R.O.A.S.S.D. (2005) 6 NWLR (Pt. 920) 140, and it matters not whether the objection is frivolous or not, it should not be ignored. SeeNwanwata v. Esumei (1993) 8 NWLR pt.563 pg.650. Tambco Leather Works Ltd. v. Abbey (1998) 12 NWLR pt. 579 pg. 548.
Now, the ground of the objection is that the notice of appeal filed on the 17th March 2017 which initiated the appeal is incompetent for non-compliance with the provisions of Section 242 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
The thrust of the respondent’s submission is that by virtue of the provisions of the said Section 242 (1) and (2) of the Constitution, the lower Court having delivered the judgment appealed against in its appellate jurisdiction, the appellant requires leave to appeal the decision. That having not sought and obtained the leave of Court before instituting the appeal, the notice of appeal was rendered incompetent citing in support the cases of GARBA V MUTALLAB (2015) 3 SQLR (PT111) 393, WEMA BANK PLC V AWOTUNDE (2010) 25 WRN 142 and ADAKAWA V GWANGWAZO ?(2016) 4 SQLR (PT) 41 @ 45.
In response, the learned appellant’s counsel in urging us to dismiss the preliminary objecting as being misleading, reproduced the provisions of Sections 241 (1) & (2), and 242 (1) (a) to (e) of the Constitution and submitted that by subjecting Section 242 to Section 241, Section 242 which requires leave of Court before an appeal can be properly filed, can only apply where it is shown that the appeal is not covered by Section 241. Section 241(1) (b) as a separate and distinct situation from Section 241(a) he argued, also gives an appellant a right of appeal as of right on questions of law alone in civil or criminal proceedings even where the High Court sits in its appellate jurisdiction. He cited in support the cases of AQUA LIMITED V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT 91) 622 @ 640 H ? F per Wali JSC and the case of TIMOTHY V FABUSUYI (2013)1 NWLR (PT 1335) which relied on the AQUA?S case (supra), among others.
As to when a ground of appeal will be said to be a ground of law or of facts or of mixed law and fact, several authorities were referred to including the cases of C.C.C.T. SCS. V EKPO (2008) 6 NWLR (1083) 362 and OBI V ETIABA (2015) 6 NWLR (PT 1455) 377 and submitted that the grounds of appeal, which he also reproduced, only raise questions of law and therefore require no leave of Court to file. Thus, the appellant?s contention that because the lower Court sat as an appellate Court the leave of Court was required before filing the appeal, he argued, is a gross misconception of the said provisions of Section 241 (1) (b). We were urged to discountenance the preliminary objection.
Now, the question to be resolved in this preliminary objection is whether the appeal before us having emanated from the decision of the Sokoto State High Court in its appellate jurisdiction, requires leave of Court to be appealable. The right of appeal from the decision of the Federal and State High Court to the Court of Appeal is a constitutional right donated by Sections 241 and 242. They are: (1) appeals as of right and (2) appeals with leave. There are thus two types of appeals created by the Constitution. SeeIkpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38, GARUBA and ORS V. OMOKHODION & ORS (2011) LPELR 1309 (SC) KEYSTONE V. OKEFE (2014) LPELR 22633 (CA).
Section 241 creates and enumerates the cases and circumstances when an appeal will lie as a right from the decisions of the Federal or State High Court to the Court of Appeal. In cases falling under Section 241 (1) (a) – (f), an aggrieved party is entitled as of right, to appeal to the Court of Appeal without the necessity to seek an order of Court to do so. On the other hand where the decision of the Federal or State High Court does not fit into any of the cases or the pigeonholes created under Section 241 of the Constitution, an appeal shall lie from the decisions of the High Court to the Court of Appeal with the leave of the High Court or the Court of Appeal.
Section 241 lists six instances when an appeal will lie as of right to the Court of appeal as enumerated in paragraphs (a) to (f) of Sub-section (1)
Sub-section (1) provides:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
Paragraphs (a) and (b) upon which the determination of this preliminary objection turns are hereby reproduced thus: (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone; decisions in any civil or criminal proceedings.?
By the clear wordings of paragraph (a), once the decision of the High Court is a final decision in its first instance jurisdiction as opposed to an interlocutory decision, there exists a right of appeal as of right, that is, without the necessity to apply for leave to appeal. This right of appeal is a total one which a litigant can freely exercise without any hindrance, irrespective of the nature of the grounds of appeal. Whether the grounds of appeal are grounds of law, or fact or mixed law and fact, the appellant has a right of appeal as of right without recourse to either the trial Court or this Court for leave to appeal in so far as it is exercised in compliance with the statutory provisions regulating the exercise of such right. This is so because the provisions of Sub-section (1) (a) are not qualified by the nature of the grounds on which the appeal, as of right, is to be brought.
Similarly, by virtue of paragraph (b) which is quite distinct and should be read disjunctively from paragraph (a), there is also a right of appeal as of right from the decisions of the Federal or State High Court in any civil or criminal proceedings where the ground or grounds of appeal involve or involves questions of law alone. Thus under Section 241 (1) (b) an appeal shall also lie from the decision of a High Court, Federal or State, in any civil or criminal proceedings, as of right without the need to seek or obtain the prior permission or leave from the trial or appellate Court to do so provided that the ground/ ground(s) of the appeal involves/involve question(s) or issue(s) of law alone. See AQUA LTD V ONDO STATE SPORTS COUNCIL (SUPRA).
While paragraph (a) of Section 241(1) specifically provides for an appeal against the final decision of the High Court, Federal or State, in any civil or criminal proceedings in its first instance jurisdiction, paragraph (b) provides for a right of appeal as of right from the decision of the said Court to the Court of Appeal where the ground/grounds involve/involves question/questions of law alone. This includes final decisions of the High Court when not sitting as a Court of first instance but in its appellate jurisdiction, that is, when it sits over appeals from subordinate Courts, otherwise referred to as ?double appeal. The only condition is that the ground of appeal raises question /questions of law alone. By this provision therefore, unlike the position prior to the 1979 Constitution when a party or litigant appealing from a decision which falls into this second category, that is, in the case of ‘double appeals’ in civil or criminal proceedings, whether on point of law, facts or mixed facts and law, could only do so by leave of the Court, no leave of Court is now required where the issue involves questions of law alone, simpliciter. See: AQUA LTD V ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (91) 622, RABIU V KANO STATE (1980) LPELR -2936 (SC), OGBIMI V NIGER CONST CO LTD (2006) 9 NWLR (PT.986) 373, NWAOLISAH V. NWABUFOH (2011) LPELR -2115 (SC).
Instructively, under sub-paragraph (b), where the ground of appeal is or involves questions/issues of law alone, the nature of the decision by a High Court against which the right of appeal is provided, is immaterial. What is relevant is whether or not the ground(s) of appeal involves/involve question(s) of law alone. Put differently, it is the nature of the grounds rather than the nature of the decision that determines whether the right of appeal exists as of right under the provisions of Section 242 (1)(b) or not. If the ground of appeal raises questions of law alone whether the decision of the High Court appealed against was handed down as a first instant or appellate Court, the right of appeal as of right inures an appellant as in the case of paragraph (a) without any need to seek permission or leave of Court to exercise the right. See OGBIMI V. NIGER CONST CO LTD (Supra), NWAOLISAH V. NWABUFOH (Supra).
It is clear from the combined reading of Section 241(1)(a) and (b) of the 1999 Constitution (as amended), that an appeal will lie as of right to the Court of Appeal not only from a final decision of the High Court, Federal or State, in its original jurisdiction in any civil or criminal proceedings involving any question of law, fact or mixed law and fact, but also from any decision of the High Court either in its original or appellate jurisdiction when the ground of appeal involves questions of law alone.
In other words, Where the decision is a final one under Section 241(1)(a) of the 1999 Constitution, the appeal is of right whether the grounds of appeal involve issues or questions of law alone, mixed law and facts or facts, and under Section 241(1) (b), the appeal is of right if the decision appealed against raises issues or grounds of law alone. This is the distinction between the right of appeal conferred on the litigant under Section 241(1) (a) and (b) of the 1999 Constitution. On the other hand, Section 242(1) of the 1999 Constitution under which the respondent’s counsel contends that this appeal falls, concerns appeals in interlocutory decisions of the High Court involving facts or mixed law and facts and, also appeals in final decisions of the High Court sitting on appeal from a lower Court such as a Magistrate Court or a Sharia Court involving questions of fact or mixed law and fact- see the Supreme Court decision inAqua Ltd. v. Ondo State Sport Council (supra), 7up BOTTLING CO. LTD V. ABIOLA BOTTLING CO. (2001) F.W.L.R. (PT59) 1216. That being the law, it follows that the paramount question that calls for determination is whether the grounds of appeal in this ‘double appeal’ raise only questions of law alone.
Looking at the two grounds of appeal, the first ground complains that the lower Court erred in law when it held that “hauzi” (prescription) does not apply in the case. That clearly is a ground of law. The second ground complains that the lower Court erred in law in affirming the decision of the lower Sharia Court which was reached without any competent witnesses testifying in accordance with the claim. In essence, it is complaining that there was no evidence or no admissible evidence upon which a finding or decision was based. Such a ground of law that there was no evidence or admissible evidence upon which a decision was based, though deceptive as a ground of fact, is indeed a ground of law. The rationale for making such a ground as a ground of law was explained Per OGUNDARE, J.S.C in the case of COMEX LTD V. N.A.B. LTD (1997)3 NWLR (PT 496) 643 when the law lord after enumerating four other categories of errors of law, stated thus:
“Lastly, I should mention one class of grounds of law which have the deceptive appearance of grounds of fact, id est where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury. Before a Judge sitting with a jury could have left a case to the jury there ought to have been more than a scintilla of evidence. So, for this rather historical reason, a ground of appeal complaining that there was no evidence, or no admissible evidence, upon which a decision or finding was based has always been regarded as a ground of law…”
Therefore, the two grounds of appeal being grounds complaining of errors of law or which raise questions of law, by virtue of Section 241(1) (b) of the 1999 Constitution (as amended), appeal against the said final decision of the lower Court in its appellate jurisdiction lies as of right to this Court without the need for the appellant to obtain leave of either the lower Court or this Court to appeal the decision. In this wise I cannot agree more with the learned Appellant’s counsel that it is a misconception of the provisions of Section 241(1) (b) for the respondent’s counsel to contend that merely because the decision complained against was given by the lower Court in its appellate jurisdiction, leave of Court was required before the appeal can properly lie to this Court. There is therefore no merit in this preliminary objection. It is accordingly entitled to be and is hereby dismissed.
I now turn to the appeal proper which will be determined on a sole issue culled from the two issues donated by the learned Appellant’s counsel, to wit:
WHETHER HAVING REGARDS TO THE RESPONDENT’S CLAIM AND THE EVIDENCE BEFORE THE TRIAL COURT VIS-A-VIS THE APPELLANT’S POSITION,THE COURT BELOW WAS RIGHT IN AFFIRMING THE CONCURRENT DECISIONS OF THE TWO LOWER COURTS WITHOUT CONSIDERING THE APPLICATION OF “HAUZI”.
On the 1st arm of the issue, it was submitted for the Appellant that the Respondent’s claim being one of declaration of title to land, the success of his claim depended on the strength of his case and not on the weakness of the dependent’s case, as held in the case of FALEYE V DADA (2016) 15 NWLR (Pt 1534) 80 SC, SALISU V MOBOLAJI (2016) 15 NWLR (Pt 1535) 242 SC.
Reproducing in extenso the evidence of the seven (7) witnesses who testified for the Respondent at the trial Court and the Respondent’s claim thereat, learned counsel contended that none of the witnesses’ evidence has any evidential value to support or sustain the Respondent’s claim in that contrary to the claim, their evidence was that after the Appellant returned the farmland, the Respondent again gave the disputed farmland to Sarkin Baura for safe keeping who in turn borrowed same to the Appellant. For the contradiction between the claim and their evidence, he argued that their evidence ought to have been rejected citing in support the book of Mawahibul jalil (popularly known as khaddabu) Vol. 6, page 157 and Ikhamul Ahkam page 14.
He submitted that, despite the contradiction and fundamental errors in evaluating the evidence and ascribing evidential value to the evidence, the lower Court accepted and relied on same to affirm the judgment of the two lower Courts, submitting further that this is an appropriate case for our intervention in setting aside the findings and decision of the lower Court.
He cited in support the cases of SHITTU V OLAWUMI (2012) 21 WRN 123 CA, and TSOKWA MOTORS (NIG) LTD V UBA Plc. (2008) 7 WRN 1 SC. It was also submitted that the Respondent having failed to establish his claim, the appellant who is in possession cannot be asked how he came into possession, citing in support the book of Tasbiratul HakkamFil – Usulil Aqdh’iyatiwa Manahijil Ahkami Vol. 2 Pages 93, and the case of FALINGO V FALINGO (2013) 1 SQLR (Pt 111) 29 C.A.
On the 2nd arm, it was submitted that a defendant who to the knowledge of the true owner of a farmland or house possesses the farmland or house for ten years or more, acquires title to the land or house by prescription (Hauzi) as stated in “Al-mayyara Vol. 2” commentary on Tuhfa, which title can only be defeated where there is evidence that the property in dispute was given on pledge, mortgage, trust, loan or safe keeping as held in the cases of DAUDA V MAGAJIYA DAN ASABE (1998) 1 NWLR (Pt 532) 102, HANNATU HUNARE V YAYA NANA & ANOR. (1996) 1 NWLR (Pt 425) 381 and HADA V MALUMFASHI (1993) 7 NWLR (PT 303) 1 at 17 Per Wali JSC, among others.
Therefore, the Appellant’s undisturbed possession of the farmland for a period of 29 years, he submitted, was one witness in his favour in proof of “Hauzi” as held in the case of HAKIMI BOYI UMMARU V. AISHA BAKOSHI (2006) 3 SLR (Pt 11) 80 and by the Respondent’s failure to prove his claim that the farmland was given to the Appellant on loan or to offer any explanation how and why the Appellant who has no blood relationship with the Respondent came into possession, the Court can, conveniently conclude that the principle of prescription (Hauzi) inured in favour of the Appellant. He cited in support the case of MUHAMMADU ORI V UMMARU DAN USMAN (2006) 3 SLR (Pt 11) 143.
It was thus submitted that the Court below was in grave error to have held that the appeal lacked merit and in affirming the decision of the lower Courts which were not based on credible evidence or principles of Sharia.
In response, it was submitted for the Respondent that a look at the claim before the trial Court clearly shows that the Respondent’s claim is for return of the farmland given to the Appellant’s father on trust which was supported by the evidence of the witnesses to the effect that the Appellant, after returning the farmland to the Respondent, requested to borrow the land and to that effect, gave the sum of #1,000 as Kola nut, a transaction which according to the counsel, took place at the palace of Sarkin Bauran Dange and was reduced into writing.
He submitted that the Respondent’s witnesses having not been impeached or challenged, the Court was bound to accept and act on their evidence citing the case of NDANA V MOHAMMED (2013) 1 SQLR (Pt 11) 140 at 148. On the Appellant’s contention that he inherited part of the farmland from his father and purchased the remaining part, it was submitted that the two witnesses produced by the Appellant having failed to substantiate the claim, the Court below was right in affirming the concurrent decision of the two lower Courts, citing in support the case of KASHIM ZAMA V KASHIM ZAMA (2015) 3 SQLR (Pt 11) 204, 211.
On the 2nd arm, the Respondent’s counsel submitted that the evidence on record including that adduced by one of the Appellant’s witnesses is that the Appellant gave #1,000 Kola nut to the Respondent which shows that the farmland was given on trust to the Appellant’s father which the Appellant returned after the demise of his father and re-applied to continue using same on trust and safe keeping, thus “Hauzi” would not apply even if the Appellant remains in possession for 100 years as “Hauzi” is defeated if the property in dispute was given on pledge, mortgage, trust, loan or safekeeping to the other person, citing in support the cases of TELA & 1 OR V KWARAGO (2013) 1 SQLR (Pt 111) 22 at 24, HADA V. MALUMFASHI (1993) 7 NWLR (Pt 303) 1, 17 – 18, MUSA DAUDA V DAN ASABE (1998) 1 NWLR (Pt 532) 102, 110 and the book of IHKAMUL AHKAMU at page 262. It was thus submitted that the Court below was right in its decision that the doctrine of “Hauzi” cannot apply in this case where the Respondent’s main claim before the trial Court was for return of his father’s farmland given to the Appellant’s father on trust. We were urged to resolve the issue against the Appellant and in favour of the Respondent to affirm the decision of the Court below which was based on evidence and principles of Islamic Law.
The gist of the Appellant’s contention on the 1st arm of the issue is that inspite of the inconsistency or contradiction between the Respondent’s claim before the trial Court and the evidence adduced by his witnesses none of which supports the claim, nor has any evidential value, but which the trial Court erroneously evaluated and ascribed probative value to, the Court below accepted and relied on the said evidence in affirming the concurrent decision of the lower Courts. That Respondent having failed to prove his case, the Appellant being in possession of the farmland cannot be asked to explain how he came into possession.
Now, the Respondent’s claim at the trial Court as contained at page 1 of the record of Appeal reads:
“I Abubakar Bandado hereby suing you Muhammadu Shingi Dandutsi as l want the Court to return to me the farm which my father Muhammadu Bandado gave the farm for custody to Muhammadu Shingi father. Muh’d Shingis father died as a result of which Muh’d Shingi sent for me with view to returning the farm land to me myself and my younger brother Alh Umaru he returned our farm to us in the presence of Sarkin Baura Dange. He requested that the farm given to him by way of borrowing so as to work on it and Sarkin Baura objected him. Thereafter 30 years we came to get back our farm he said he will return it. That is the reason why I am suing him so that the Court will collect and return my father’s farm from him.”
The Respondent called six witnesses though the 5th witness was erroneously numbered as PW6 and the 6th as PW7.
The evidence of PW1 is that he was sitting with the Hakimi gidan Sarkin Baura (PW7) in his palace, when Shingi, the Appellant’s father came with three people and a Fulani man, who happened to be the Respondent, Buba Dandado, and said that he wanted to urgently hand over the farmland in his possession to the Respondent. He was commended by the Hakimi (PW7) for doing so.
When asked by PW7 what he intended to do with the farmland, the Respondent replied that to strenghten their relationship, he wanted to sale the land to Shingi and his brother, Umar, but the Appellant insisted that the land be sold to him alone or be kept in his custody alone. For this disagreement the Respondent decided to give custody of the land to one Abi Kaura (Sahabi) with a written agreement to that effect witnessed and signed by PW7 and the Respondent’s representative at the trial, Malam Mode Zagi Dange, among other witnesses. Present at the palace include PW2 who also testified that when Shingi the Appellant’s father disagreed with the Respondent’s proposal to divide the land into two for one half to be sold to him and other half to Umar, the Respondent decided to give custody of the farmland in writing to Abi (Sahabi). To the same effect is the evidence of PW3 and that of PW4 who added that when Shingi asked to be sold the land, the Respondent said he would do so later but Shingi should give Kola nut and he did give ?1,000; but the following year, when the Respondent decided he would divide the land into 2 to sell half to Shingi and the other half to Umaru, Shingi refused.
The evidence of PW6 is that the bargain for the farmland was made by Shingi, his sister’s son and his own son, Yidi Umaru but knows nothing more. The evidence of PW7 which the learned Appellant’s counsel submitted is contrary to the Respondent’s claim in that it was PW7 who after the return of the land was given custody of the land and in turn borrowed it to Shingi and Umaru contrary to the Respondent’s claim, is, for the purpose of clarity reproduced below;
(PW7) “In short these people were called by Shingi that is Buban Bandado and other people as I am aware of their farm in possession I have returned to them their farm. I asked him did you return the farm he said yes. I said Shingi are you the one who sent for this Mallam. He said yes and I have returned to them their farm. I said since Shingi has returned the farm; let it be shared into 2 between those who inherited over the farm; thus Umaru and Shingi. Shingi said if it was said that the farm be cuts into 2 then sold to them he disagreed. And this document here is genuine that is how it was and it is. This is what had happened.”
From the reproduced plaint note, the Respondent’s claim before the trial Court was for the return of his father’s farmland in custody of Muhammed Shingi’s father which Muhammed Shingi upon the demise of his father returned to the Respondent and his brother, Umaru, but was again upon the Appellant’s request, borrowed to him and which the Appellant had not returned to the Respondent, 30 years after; the reason for which the suit was instituted for the Court to collect back the farmland from the Appellant. This is the substance of the claim.
The submission of the learned Appellant’s counsel that contrary to the claim, it was PW7 to whom the land was given for safe keeping after its return, and who in turn borrowed it to the Appellant’s father, is, without mincing words, far from the evidence on record. Without any equivocation, it is clear from the evidence of PW7 that he (PW7) was not given custody of the land, nor did he borrow it out to the Appellant. PW7 only made a suggestion that the land be shared and sold to the Appellant and Umaru, a suggestion which PW7 said the Appellant disagreed with insisting that he would buy it alone not with any other person.
There is therefore nothing in the evidence of PW7 that is contrary to the Respondent’s claim. Rather, the overwhelming evidence on record which the trial and the two lower Courts accepted is that after the demise of the Appellant’s father, the Appellant in company of the Respondent and three other persons went to the palace of PW7 and in the presence of PW1, PW2, PW3, & PW4 announced that he was returning to the Respondent, the farmland which was in safe custody of his deceased father. He then requested, that the land be sold to him alone, a request which the Respondent said he would consider later but that the Appellant should give kola nut, in response to which Appellant gave the sum of #1, 000. The Appellant was allowed to use the land. The following year when the Respondent decided that he would divide the land into two and sale one half to the Appellant and the other half to Umar, the Appellant disagreed. (See the evidence of PW4 at pp6 – 7 of the record). Following the Appellant’s disagreement, the Respondent decided to give custody of the land in writing to one Abi (Sahabi).
The document of the custody as copied at pp 8 – 9 of the record reads:
“PERMISSION (LETTER) FOR CUSTODY OF A FARM
Today 13/4/97 I, Mal. Buban Bandado gave to Malam Sahabi Ahmad Dange custody of my farm which I inherited from my father Mu?hd Bandado thus the farm situated at Dan-Dutsi. Therefore Shingi should hands off from today.
After this Mallam Sahabi want
WITNESSES
1. His Highness Sarkin Bauran Dange
2. Mal. Aliyu Mammaha
3. Rowan Made
4. Rafi Dan Duma
5. Mal. Mode Zagi Dange.”
The Appellant has however denied retuning the farm or any knowledge of the said document giving custody of the land to Mallam Sahabi Ahmed Dange claiming that he inherited part of the land from his father and purchased the other part, and that he has been in possession of the disputed land.
Under Islamic law, the appellant’s claim of ownership of the land by inheritance and by purchase made him a plaintiff and places on him the burden of proving what he asserts and judgment will only be given based on the evidence adduced directly in support of the assertion. In the book of IHKAMUL AHKAM page 14 it is stated as follows:
“the judge depends on evidence of witnesses in giving judgment”
This proof, under the general principles of Islamic Sharia in relation to claim in civil matters in both moveable and non-moveable property, is complete by the evidence of two male unimpeachable witnesses or such one male witness and two or more female unimpeachable witnesses or one male or two females or more such unimpeachable witnesses with the claimant’s oath in either case. See Baba v. Aruwa (1986) 5 NWLR (Pt.44) 774 at 786. See also page 34 of Ihkamul Akham, short commentary on Tuhfatul Hukkam, the English translation of the Arabic where it is stated thus:
“With the exception of proof of allegation of adultery or fornication, evidence of two unimpeachable male witnesses is sufficient or in the alternative (ii) evidence of one male and two-or more female witnesses or (iii) a male witness with the claimant’s oath or (iv) two or more female witnesses with the claimant’s oath.”
Where a claimant fails to adduce the required evidence, the judge is barred from entering judgment for him and his case is bound to fail. See WUDIL V WUDIL (2014) 2 SQLR (PT IV) 595.
Now in proof of his claim, the Appellant called two witnesses, DW1, Muhammed Yidi Jurga whose evidence at page 10 of the record is that:
“I know that Shingi gave to Buba #1, 000 as (Goro) kola nut in respect of the farm. After that I knew (sic) nothing.” and DW2, Muhammed Bala Shiyar Hausawa at page 11 of the record whose evidence is that:
“Before me and Allah I know nothing in the matter. That is all.”
The trial judge discarded their evidence, and rightly so, that their evidence does not meet the requirement of the law. The two lower Courts were in concurrence with the trial Court. And which Court of law wouldn’t be?
The above evidence of the Appellant’s two witnesses clearly falls short of the required proof under Sharia. The required number of witnesses must not only be credible but must give their evidence in relation to the fact in issue. The evidence adduced by these two witnesses requires no erudition, judicial or otherwise, to conclude that their evidence is of no assistance to or avails not the Appellant in proof of his claim, as their evidence put together, bears no feather’s weight of evidential value in support of the Appellant’s claim. To ascribe any probative value to any piece of evidence, that evidence must not only be relevant and credible, it must also be valuable to the fact which is seeks to establish and of such quality to have any essence on the probative scale. See MOGAJI V ODOFIN (1978) 4 SC 91.
The criteria for the attachment of probative value to any piece of evidence other than its relevance which is the heart beat or the centre piece of the law of evidence and whether the evidence is admissible and properly admitted, is the credibility, the connectivity and value of the evidence to the fact it seeks to prove. It is only after a party scales through all these hurdles and proves that the evidence adduced by him is not only relevant and admissible but is also credible, relevantly connected and valuable to his case so much that it adds to the erection of a common evidential scale in the matter, that a trial judge will attach evidential value to the evidence. Any evidence that does not prove the proposition for which it is proffered cannot be said to have any probative value in proof of the fact in issue and the Court is entitled to disregard that evidence. Afterall, the law does not permit evidence which is of no probative value to be relied or acted upon by a party, nor to be acted upon by the Court. See Rockonoh Property Co. Ltd. v. Nigerian Telecommunications Plc & Anor. (2001) 7 SC (Pt. III) 154; (2001) H 14 NWLR (Pt.733) 468 Page 176, lines 5 to 26 per Uwaifo, JSC.
Simply put, the Appellant adduced no scintilla of evidence in proof of his claim that he inherited half of the land from his father and purchased the other half. By no stretch of imagination can the evidence adduced by the Appellant’s witnesses, DW1 & DW2 be construed or measured as constituting evidence in proof of the Appellant’s claim of ownership of the land by inheritance or by purchase. DW2 knows nothing about the case and DW1 only knows as much as the giving of N1, 000 as kola nut, which does not amount to sale of land and is insufficient to prove the Appellant’s claim. The finding of the trial Court to that effect which the two Courts affirmed cannot be faulted. On the other hand, the evidence in support of the Respondent’s claim which the trial Court accepted and affirmed by the two lower Courts is overwhelming.
I find the situation in this appeal, clearly a case of concurrence of finding of facts by the trial and the two lower Courts. An appellate Court such as this Court will be loath to interfere with such concurrent findings of facts save as guided by the established settled principles of law. The Court does not, as a matter of course or just for the asking, interfere with such concurrent findings of lower Courts except where the findings are shown to be perverse or based on wrong principles of law. The principles upon which an appellate Court can disturb concurrent findings of lower Courts were set out in the case of Oguonzee v. State (1998) 121 at page 124 thus:
“It is clear from the above findings of the Court of Appeal that this is a clear case of concurrent findings of fact by both the trial Court and the Court of Appeal. In this regard, the law is well settled that where there are concurrent findings of fact by both the trial Court and the Court of appeal, again whether in a civil or criminal proceedings, then unless those findings are:- 1) Found to be perverse: or 2) Not supported by the evidence: or 3) Reached as a result of a wrong approach to a wrong application of principle of substantive law or procedure: 4) This Court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See: Enang v. Adu (1981) 11-12 SC 25 at 42; Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718; Igwego v. Ezeugo (1992) 6 NWLR (pt. 249) 561 etc. Accordingly, this Court will not disturb concurrent findings of fact of both the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or where an Appellant establishes a special circumstance to warrant the reversal of such concurrent findings. See: Sobakin v. The State (1981) 5 SC 75; Ige v. Olunloyo (1984) 1 SCNLR 158; Eholor v. Osayande (1992) 6 NWLR (pt. 249) 524 at 548…”
See also the more recent decision of the apex Court, Per Galadima JSC in the case of Oguanuhu & Ors. v. Chiegboka (2013) Vol. 221 LRCN (Pt. 2) 111 at 130 Paras. E – J to 131.
In the case at hand the Appellant failed to show that the findings are perverse or are not supported by the evidence or were reached as a result of a wrong approach or a wrong application of principle of substantive law or procedure, or that of any of the acceptable exceptions exists in this case to warrant our interference with or the reversal of the concurrent findings of fact by the lower Courts.
See also Enang V. Adu (1981) 11 – 12 S.C. 25; Ohanaka v. Achugwo (1999) 9 NWLR (pt. 564) 37 MBONU v. NWOTI [1991] 7 NWLR (Pt. 206) 737; KADA V. STATE [1991] 8 NWLR (Pt. 208) 134.
On the Appellant’s contention that the principle of prescription otherwise known as “Hauzi” applies to the present case the Appellant having been in undisturbed possession for over 29 years, the principle of hauzi, is that a person in peaceful possession of a thing (real property) for 10 years, becomes its owner. This principle is derived from the prophetic saying (Hadith) of the Holy prophet (SAW) that:
“Whoever is in peaceful possession of a thing (real property) for 10 years, he becomes its owner.”
This same principle is also stated in Tuhfa thus:
“Where a person (not being a relation to the claimant) has been in possession of a real property for ten years, he acquires ownership of it.”
It is further explained In Ashalul Madarik Vol. 3 page 236, by the author that:
“He who sees somebody in possession of his (claimant’s) property and claiming and using the same as his own over a long period without any objection from him, the person in possession becomes the owner. If the original owner later brings an action to recover it, neither his complaint nor evidence in support thereof will be listened to.”
It is therefore a settled position of Islamic law that where a person has been in peaceful enjoyment or possession of land without challenge for 10 years he acquires a title by Hauzi (Prescription) against any person who claims to be the true or original owner of such land and who stood by without taking any action to reclaim his land during that period. Put more clearly, a person who sees somebody in possession of his or her property and claiming and using the same as his own over a long period without any objection from (the true owner) loses his ownership and that other person in possession becomes the owner. However, hauzi is defeated by certain factors and these include: (1) blood relationship, fear of harm from these authority. (2) Minorship. (3) The person in possession was put there by the claimant either as a free or paying tenant. (4) The person in possession is put in there as a trustee. (5) The claimant is a partner or co-proprietor to the person in possession. In enumerating some of the exceptions to ‘Hauzi’ Coomasie JCA of blessed memory (as he then was) in theHADA V MALUMFASHI’S (Supra) listed the following exceptions:
“(a) Cogent reasons are adduced for not complaining in time, for example blood relationship or fear of harm from authority;
(b) The claimant is a minor;
(c) The person in possession was put in possession by the claimant either as a free or paying tenant;
(d) The person in possession is put in possession as a trustee;
(e) The claimant is a relative, or a partner or co-proprietor to the person in possession; and
(f) In the case of a house, the possessor is in permissive occupancy.”
Again, where a claimant has not been in the town or village, or the claimant is not residing with the person in possession or where the claimant has travelled out or he was in a state of incommunicado, then, the principles of Hauzi cannot be used to deprive him or her of his or her property. Similarly, in the case of TELA & 1 OR V KWARAGO (supra) cited by the respondent’s counsel, the Supreme Court restated some of the factors thus:
“There are certain factors which defeats hauzi such as infancy/minority, loan, inheritance, deposit, trust, pledge, prolonged justifiable absence of claimant e.g. claimant serving jail term for some time or on hospital bed, marital tie, fear of powerful relation or ruler”
In the case at hand, it must be noted that the land in dispute was originally given to the appellant?s father for safe custody by the respondent and upon the demise of the appellant?s father and the return of the land by the appellant to the respondent, the appellant was, upon the payment of N1,000 as kola nut, allowed to continue using the land until the respondent communicated his intention to the appellant that he would divide the land into two to sale half to the appellant and the other half to Umaru to which the appellant refused. It is of paramount importance to note that the basis of the initial possession of the disputed farmland by the appellant’s father, was for safe custody of the land as entrusted to him by the respondent. The appellant’s possession or continued possession of the farmland after the demise of his father and the return of the land, was on the basis of the payment of the sum of N1000 as kola nut to enable him use the land on loan. Under that arrangement, no matter how long the appellant remain in possession of the land, the possession or occupation and use of the land cannot metamorphose into ownership or defeat the respondent’s title to the land.
Hauzi is defeated where as in this case, there is evidence that the property in question was given as loan, or on trust, or safe keeping. In other words, hauzi does not apply to or affect any property in the possession of another no matter how long such property is or remains in his possession if it is on loan, pledge, trust, mortgage, or safe keeping or in any of the other exceptions earlier stated in this judgment. In such situations, the defence of prescription (hauzi) is not open to the defendant. Therefore, the initial safe keeping by the appellant’s father and the subsequent loan or borrowing of the land to the appellant for use, defeat the defence of ‘Hauzi’ strenuously argued by the appellant?s learned counsel. The appellant cannot, in the circumstance, rely on Hauzi to claim ownership of the land or to deprive the respondent the right to his land.
In the final analysis and in conclusion, the appellant having been unable to show why we should interfere with the concurrent findings and conclusion of the lower Courts which was rightly affirmed in our view, by the Court below, or that the principle of hauzi applies in this case, we cannot but resolve the sole issue against the appellant and in favour of the respondent. Resultantly, we find no merit in this appeal and it is hereby accordingly dismissed with cost of #50,000 to the respondent.
HUSSEIN MUKHTAR, J.C.A.:The main issue in this appeal is predicated upon whether the appellant acquire the disputed land, which has been the subject of trust by application of the principle of hauzi (prescription). For a proper understanding of application of the principle of hauzi under Islamic Law it is appropriate to examine the general principle of prescription, otherwise known as-Hauzi under Islamic Law. According to Ikhamul Ahkam, a short commentary on Tufa page 260, the period of prescription under Islamic law is 10 years where the parties are not related by blood or marriage. Thus, where a person has been in undisturbed possession of a landed property for a period of ten years or more, while the true owner stands by and does nothing to reclaim his property, he acquires title by prescription. See Ibrahim v. Abubakar 1(1961 – 1989) SLRN and Abubakar v. Salihu 1 (1961-1989) SLRN 243.
Thus, generally 10 years of peaceful enjoyment and undisturbed possession of land bars all actions against the possessor unless he be claimant’s relation, partner, co-proprietor or where the possessor was in permissive occupancy only.
In the instant case, the Appellant’s father has held the land in trust for the Respondents and therefore, the principle of hauzi (prescription) is inapplicable as held by the Court below. For this and the more detailed reasons in the lead judgment of my learned brother Amina Audi Wambal, JCA with which I am in total agreement, the appeal is bereft of substance. It is accordingly dismissed. I adopt the consequential orders made as to costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in dismissing this Appeal lacking in merit. I abide by all consequential orders made thereto.
Appearances:
M.U. Uwais, Esq.For Appellant(s)
Muhammad Adeleke, Esq. with him, H. A. Muhammah, Esq., A. Z. Adeyi, Esq., E. N. Longbis, Esq. and S. M. Busari, Esq.For Respondent(s)
