MAI UNGUWA LAWAL MAI GEZOJI & ANOR v. AUDU KULERE (2011)

MAI UNGUWA LAWAL MAI GEZOJI & ANOR v. AUDU KULERE

(2011)LCN/4544(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of May, 2011

CA/K/82/2009

RATIO

POWER OF THE TRIAL COURT: WHETHER UNDER ISLAMIC RULES OF PROCEDURE’ THE TRIAL COURT IS CLOTHED WITH THE POWER TO DETERMINE WHO SHOULD BE THE PLAINTIFF AND THE DEFENDANT REGARDLESS OF WHO HAD FILED THE CASE

…”under Islamic rules of procedure’ the trial court is clothed with the power to determine who should be the plaintiff and who should be the defendant regardless of who had filed the case but due regard to the complaint before it”, it is of huge necessity to recognize that one of the underlying principles of civil procedure rules of Islamic law is that every claim must be stated in clear, unambiguous and categorical terms, otherwise there should not have been need for the requirement that in landed properties, the locations and boundaries or any special features of the land must be mentioned. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

PLEADINGS: WHETHER EVERY CLAIM MUST BE STATED IN CLEAR TERMS OR CLEAR STATEMENTS

JUDICIAL PROOF: WAYS BY WHICH JUDICIAL PROOF IN LAND AND PROPERTY MATTERS WILL BE SATISFIED UNDER THE ISLAMIC LAW PROCEDURE

… in all questions relating to property, judicial proof is complete by the evidence of: (a) one man and two women (b) one man and claimant’s oath and (c) two women and claimant’s oath. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

BURDEN OF PROOF: HOW A PARTY ASSERTING MUST PROVE HIS CASE UNDER ISLAMIC LAW PROCEDURE

BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF UNDER THE ISLAMIC LAW PROCEDURE IS ALSO ON THE PARTY WHO ASSERTS AS IT IS ON HIM UNDER THE ENGLISH PROCEDURE

It was held in Shittu vs. Biu, Sharia Law Report p. 39 that in both English procedure and Islamic law procedure, the burden of proof is the same, that is to Say, he who asserts must prove. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

INTERFERENCE WITH FINDINGS OF FACTS: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACTS BY MADE THE TRIAL COURTS AND COURTS BELOW

It is an established principle of law that under the Sharia as well as under the Common Law, an appellate Court will not interfere with the findings of facts by trial Courts and Courts below unless such findings cannot be justified by the evidence adduced at the trial Court. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. MAI UNGUWA LAWAL MAI GEZOJI
2. ALH. ISA DANGIDAN HAJIYA Appellant(s)

AND

AUDU KULERE Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The suit leading to this appeal was initiated by the Respondent on 23/8/2004 in suit No. 439/04 at the Upper Sharia Court Dutsin-Ma, Katsina State whereat his claim as the Plaintiff against the Appellants, then the Defendants was presented in the following manner:
“I am suing the defendants, i.e., Mai Unguwa Lawal, Alh. Isa and Mati Bera because they ate away my crops planted in my farm”.
The record of this appeal shows that the 3rd Defendant, i.e. Mati Bera was absent in Court on the said date and only Mai Unguwa and Alh. Isa were called upon to plead to the said claim, which they totally denied. Hearing commenced in the matter, and at a stage, visit to locus in quo was conducted by the Upper Sharia Court, Dutsin-Ma, 5 representatives who assessed the value of the crops apparently damaged, and based on the said assessment the said trial Upper Sharia Court made it’s award.
The Appellants were disappointed with the above pronouncement, and as a result, they lodged an appeal before the High Court of Katsina State in the Dutsin-Ma Judicial Division in Appeal No. KTH/DM/6/05 on the grounds that: “(i) the decision of the trial Court is against the weight of evidence adduced before the Court, and (ii) the trial Court erred in law when it ordered the applicants to pay N160,000 without making proper assessment of the alleged mischief on crops belonging to the Respondent. The appeal was heard and determined. The High Court of Katsina State sitting at Dutsin-Ma, in its appellate jurisdiction, expressed inter-alia thus:
“… It cannot be true to classify a complaint by an aggrieved party to the Court his farmland had been raided and destroyed by cattle belonging to another as vague. Any amount fixed without a full assessment of the destruction would be mere conjecture and no harm is done if the task of making the assessment is left to the Court”.
The Appellants were further distraught by the pronouncement of the High Court of Katsina State in its appellate jurisdiction, hence this appeal which was pivoted on five grounds of appeal.
The Appellants had, in their Brief of Argument, propositioned four issues for the determination of this Court, thus:
“1 . Whether the Respondent has paved (sic) his case as required by law.
2. Whether the decision of the High Court of Justice Katsina State was right when it affirmed the decision of the lower Court which delegated its functions to staff of the lower Court.
3. Whether the High Court of Justice of Katsina State was right to admit and use through motion bunch of certified documents as evidence of payment of filing fees.
4. Whether the High court of Justice Katsina State was right when it affirmed the decision of the trial court despite there was no Proper claim before it”.
The Respondent was duly served with the record of this appeal and the Appellants’ Brief of Argument, yet he did not bother to take any step in the proceedings to regularize his position, meaning therefore, he did not file the Respondent’s Brief of Argument on this appeal. Further, after this appeal had been slated for hearing, the Respondent was served with hearing notice intimating him of the hearing date, still he did not deem it necessary to make any move warranting his participation in the appeal. Only the Appellants’ Brief of Argument was before this court and this appeal was considered squarely on it.
Learned counsel for the Appellant submitted in relation to issue No.1 raised by the Appellant, that no credible and eligible evidence was proffered by the Respondent at the trial despite having called two witnesses to prove his case. He argued that the evidence did not establish the quantum of damages and the nature of the crops destroyed or damaged. He cited the case of Akinfe vs. U.B.A. Plc. (2007) 10 NWLR Part 1041 p. 185 at 201paras. c – E and urged this court to re-evaluate the evidence adduced before the trial court since the High court of Katsina State in its appellate jurisdiction failed to re-evaluate the evidence, despite having the competence so to do.
With respect to issue No.2, learned Counsel stated that the assessment of the alleged destroyed crops and visit to locus in quo were done by one Musa Gyaza and Mallam Lawal Danmusa. He then argued that the High court of Katsina State sitting in its appellate jurisdiction was totally wrong in law when it held that “a Court governed by Islamic Rules of Procedure is at liberty to appoint any assessment (sic) for it”. counsel contended that it is the duty of the trial Court or the trial Judge to carry out the inspection or visit the locus in quo and not anyone else. Also, the assessment of the destroyed crops is a judicial function that should be done by the Court properly constituted but not otherwise. He made reference to section 4(2) of the Sharia courts Law, 2000, cap 173, Laws of Katsina State, 2002.
On issue No.3, Counsel stressed that no filing fee in respect of the Respondent’s claim was paid. He argued that non-payment of filing fees renders null and void the entire proceedings since the payment of filing fees is a condition precedent to commencement of an action. He cited Kinfau vs. Kinfau (2006) Part 975 p. 200 at 215 paras. B – F and Madukolu vs. Nkemdilim (1962) SCNJ 341 in support. He further argued that the High court of Katsina State in its appellate jurisdiction was therefore wrong when it relied on and made use of uncertified photocopies of the trial court’s documents as evidence of payment of filing fees. He relied on the provisions of section 113A(iii) of the Evidence Act and submitted that only certified copies of public documents could be admitted in evidence and used by the Court.
In respect of issue No. 4, learned Counsel, to a certain degree’ reiterated the argument he marshalled for issue No. 1, saying that there was no proper claim before the trial court and no mention was made about the nature and quantity of crops allegedly damaged. He stressed that the Respondent merely stated before the trial court that he was suing the Appellants because they ate away his crops.
Counsel argued that despite all these, the High Court of Katsina state sitting in its appellate jurisdiction affirmed the decision of the trial Court and ordered the Appellants to pay the sum of N160,000 to the Respondent. He asserted that a court of law can only grant what was claimed before it. He then cited J. E. Oshevire Ltd vs. Tripoli (1997) 4 SCNJ 246 at 249 paras. 16 – 18 and Ugochukwu vs. co-operative Bank (1996) 7 SCNJ 22 at 37 paras.25 – 30 and then urged this court to allow the appeal and set aside the decision of the High court of Katsina State in its appellate jurisdiction. In considering this appeal, I feel it more appropriate at the outset to tackle issues Nos. 1 and 4 together as they relate to whether there was proper claim or not before the trial Court and whether such had been proved as required by the law. As I earlier articulated in this judgment, the claim presented before the trial upper Sharia court.
Dutsin-Ma was that the Appellants and one Mati Bera ate away the crops planted in the Respondent’s farm. It is clear that the said claim as presented by the Respondent before the trial Upper Sharia Court seemed ambiguous and unimaginable. He did not mention that it was the Appellants’ cattle that destroyed his crops or in his words ,that ate away his crops”. He categorically asserted that it was the Appellants who ate away his crops planted in his farm. what this connotes is that he must call in evidence to prove that it was the Appellants who ate away his crops planted in his farm.
Even if, as opined by the High court of Katsina State sitting in its appellate jurisdiction, that “under Islamic rules of procedure’ the trial court is clothed with the power to determine who should be the plaintiff and who should be the defendant regardless of who had filed the case but due regard to the complaint before it”, it is of huge necessity to recognize that one of the underlying principles of civil procedure rules of Islamic law is that every claim must be stated in clear, unambiguous and categorical terms, otherwise there should not have been need for the requirement that in landed properties, the locations and boundaries or any special features of the land must be mentioned.

Although the filing of pleadings is not part of the procedural law of the Upper Sharia Court, it was held in Mafolaku vs. Alamu, Sharia Law Reports p. 105 that every claim must be stated in clear terms or clear statements and that in all questions relating to property, judicial proof is complete by the evidence of:
(a) one man and two women
(b) one man and claimant’s oath and
(c) two women and claimant’s oath.

The party asserting must prove his case by calling two unimpeachable witnesses who will testify to all the facts. They must proffer credible evidence and not a spurious one. Maidama, J.C.A., said thus:
“It is necessary when a party is making a complaint before a Court, he must make it clear and unambiguous so that if the subject-matter of dispute involves claim of ownership or title to a piece of land, such as in the case at hand, the plaintiff must state its boundaries and locations.
If on the other hand, the claim involves a sum of money, he must state the exact amount. See Ihkamul Ahkam p. 9 lines 1 – 2 where the learned author stated the law thus:
“two conditions are essential to the subject matter in dispute; there should be clear statement of the complaint followed by a proper description of the subject matter”.
In the instant appeal which involves destruction of property and economic loss, the Respondent ought to have stated the type of economic crops damaged and the value or exact sum of the crops destroyed rather, what was presented as his claim to which the Appellants pleaded was that the Appellants ate away his crops. It is instructive to note that the real nature of the economic crops damaged and their value emerged only after the people representing the Court visited the locus in quo with three different groups of assessors. It was never proved by the Respondent and his witnesses that it was the Appellants who ate away the guinea-corn planted in his farm nor was their monetary value stated.
In proof of his case, the Respondent called two witnesses. P.W’1, Abu, told the court that he saw the cattles of Lawal and Alh. Isa in the farm of Audu eating away his guinea-corn. Under re-examination, he explained that it was the children of the defendants he saw, namely; Kadi from Alh. Isa’s house, and, Ingel from Alh, Lawal’s house.
Then, P.W.2, M. Ali, said that he saw Ingel and Chiori (sic) in the farm of Alh. Audu and they were destroying his crops, that they passed through Audu’s farm into his (P.W.2’s) farm.
It is pertinent to note that even the evidence of P.W.2 did not state the type of crops that were supposedly eaten away by the Appellants. It was not stated in the evidence of P.W.2, that guinea-corn was the crops damaged by the cattle of the Appellants. It was also not shown in the evidence supplied by the Respondent how many pieces or bags of the said guinea-corn was supposedly destroyed by the Appellants’ cattle, and their value. The quantity and their value were only shown in the assessments done by the groups. Group A estimated the quantity to be 40 bags of guinea- corn and valued at N160,000.00, Group B assessed the destroyed crops as 70 bags of guinea-corn valued at N280,000.00 while Group C estimated them to be 40 bags of guinea-corn and valued at
N160,000.00. It is clear in the proceedings that neither the Plaintiff, i.e., the Respondent nor his witnesses informed the trial Upper Sharia Court of the quantity of crops allegedly damaged by the Appellants or their cattle as the case may be.
It should be noted that the fact that the Defendants, i.e., the Appellants failed to testify or call witnesses cannot lend credence to the case of the Respondent or automatically render the Respondent’s case as having been proven except the Respondent himself discharged the onus of proof placed on him by the law. It was held in Shittu vs. Biu, Sharia Law Report p. 39 that in both English procedure and Islamic law procedure, the burden of proof is the same, that is to Say, he who asserts must prove. In the instant appeal the burden was on the Plaintiff, i.e. Respondent, to adduce evidence in proof of his case.
It is an outstanding fact from the statement of claim of the Respondent and the evidence of his witnesses that no clear claims were presented by the Respondent before the trial Upper Sharia Court. I would, therefore, make reference to the case of A. G., Ogun State vs. A. G., Federation (2002) 18 NWLR Part 798 p. 232, in which the Supreme Court held that where a particular relief sought by a party is too wide, or vague or unimaginable, or unspecific, the Court will refuse to grant such a relief. It was stressed therein that the Plaintiffs reliefs Nos. (xii) which sought for an order of perpetual injunction restraining the defendants by itself, agents, officers or privies from repeating or further committing such or similar unconstitutional acts in violation of any of the provisions of section 162 of the Constitution and (xiv) which also claimed for an order of perpetual injunction restraining a further order compelling the defendant to pay to the plaintiff its legitimate and correct share of the Federation Account less all monies already paid to the plaintiff from the said account, within the period 29th May, 1999 till the date of judgment in this suit were glaringly vague, too wide and cannot be granted, and that an order should not be made in vain.
It should be noted that stating one’s claim is also different from producing evidence to proving the same. See the case of Beli vs. Umar (2005) 12 NWLR Part 939 p 325, where Jega, J.C.A., stated
as follows:
“If indeed the basis of the claim of the Respondent to the swampy farmland in dispute was that it belongs to his late father who told him that he bought it from the village head Gandu at an unspecified price, then the evidence of P.W.2 quoted in full above from the judgment of the Court below which also quoted and relied on it, is infact very far from supporting the claim of the Respondent to the ownership of the swampy farmland in dispute under both the common law and the Sharia. Also, based on the same evidence of P.W.2 quoted above from the judgment of the Court below which also relied on it, it is indeed very difficult if not impossible to explain how that Court below arrived at its finding at page 11 of the record that:-
“It follows therefore that if the witness said that the farmland belongs to the Appellant we cannot see how the piece of evidence is in conflict with what the Appellant complained to the Court”.
With the greatest respect to the Court below, there is no where in the evidence of P.W.2 quoted by it above where he said the farmland in dispute belongs to the Appellant, now Respondent in this Court”.
According to the record before this Court, the claim stated by the Plaintiff, i.e., the Respondent was that “the Defendants ate away his crops”. None of the testimonies of P.W.1 and P.W.2 tend to support that assertion. The evidence adduced is in sharp contrast to the statement of claim of the Respondent presented before the trial Court which the High Court affirmed proved the claim. The seeming statement of claim of the Respondent, to my mind, comes within the reckon of claims said to be unimaginable and too vague.
What was awarded by the trial Upper Sharia Court and affirmed by the High Court of Katsina State in its appellate jurisdiction, never represented the statement of claim of the Respondent before it.
None of the awards made to the Respondent had any bearing to the claim he presented before the trial Upper Sharia Court nor was any proved by him through his witnesses. Accordingly, issues Nos. 1 and 4 are hereby resolved in favour of the Appellants.
On the second issue, whether the decision of the High Court of Katsina State was right when it affirmed the decision of the lower Court which delegated its functions to staff of the Court in assessing the quantum of damages, it needs to be emphasised that the proceedings conducted by a Court upon its visit to a locus in quo is not impeachable merely upon technical objection. In Adesina vs. Afolabi (2002) 13 NWLR Part 783 p. 203, it was held that even if the procedure adopted by a trial Court in conducting a visit to the locus in quo can be faulted, such procedural error per se will not ground an appeal. The appeal will be allowed only if the appellant shows that such an error is substantial in the sense that if the trial Court had directed itself correctly, it would have reached a different decision.
The record before this Court shows that on 2/9/04, the proceeding was adjourned to 9/9/2004 to enable the Court pay a visit to the farm in issue in order to see for itself the damage done to the farm.
The record further shows that it was on 6/10/2004 the visit was conducted and that there was no indication that any activity of the Court took place on the said 9/9/04. However, the record somewhat suggests as if it were on 5th October, 2005, that the visit was conducted. The record shows thus:
Case No. 139/04
6/10/2004
Alh. Audu Kulere
VS.
Mai Unguwa Lawal & 2 Others
At the last adjourned date this Court adjourned in order to visit the farm in issue to see the damage alleged to have been done to the farm.
Today 5/10/05 this Court was represented by Musa Gyaza and M. Lawal D’musa (messenger) together with the plaintiff and his representative M. Ibrahim and Mai Unguwu Lawal where at the farm where we meet Mai Unguwa Bawa and Danjuma Kwari with their people.
Group A
1. Salisu
2. Halliru Audu
3. Abu Ibrahim
They assessed as 40 bags of guinea-corn valued at N160.000.00.
Group B
1. Abu Mamman Idris
2. Idris Usman
3. Abu Na Bako
They assessed as 70 bags of guinea-corn, valued at N280.000.00
Group C
1. Lawal Tela
2. Mai Unguwu Bawa
3. Isiya Raman
They assessed it as 40 bags of guinea-corn, valued at N160.000.00″.
The record firstly depicts that it was not the Judges of the trial Upper Sharia Court as constituted that conducted the visit. They were not present at the visit, rather they were represented by one Musa Gyazaand Mr. Lawal D’musa described as a messenger, who, apparently, conducted the visit. It was not shown that during the visit any question was put to the 1st defendant who was recorded as being present.
At this juncture, I am compelled to invoke the decision in the case of Olanudu vs. Temiye (2002) 2 NWLR Part 750 p. 21 where the Judge of the Okitipupa Division of the Ondo State High Court delegated his responsibility to visit the locus in quo at Maboro-Nla, Maboro Kekere and Oriyanrin to the Acting President of Grade II Customary Court, and Ibiyeye, J.C.A., described the action of the Judge, as an utter dereliction of duties of hearing, seeing and observing during trial by the learned trial Judge. Also, Tobi, J.C.A. (as he then was) said inter-alia thus:
“This is a very wrong procedure and I condemn it. Where a trial Judge is confronted with two conflicting evidence as to the physical nature of the subject-matter in dispute, he resolves the conflict by an inspection of it; provided that he is careful to avoid placing himself in a position of a witness and arriving at conclusion based upon his own personal observation not borne out by the evidence on the record. see Afolayan vs. Ogunride (1936) 3 NWLR Part 26 p.29.
Visit to locus in quo by the trial Judge is the visual collection of evidence whether or not in confirmation or corroboration of evidence testified to. In visit to locus in quo the Judge must be present. As a matter of law, by the visit to the locus in quo, the Judge temporarily changes his environment from the traditional court room to the locus in quo. The Judge must be present to hear and see witnesses step boundaries, if it is a land matter, or show the court the subject-matter, its features and all that.
The trial Judge, as the judex, adopt one of the two procedures – (a) The Judge may adjourn to the locus and continue sitting there in normal way of hearing and taking evidence of witnesses; or (b) the Judge may just move to the locus to inspect the subject-matter of dispute and return to the court room for evidence of the inspection to be adduced. An inspection of locus in quo without the Judge is a nullity. It is like another person who is not a Judge giving a decision in a matter in the court room”.
In its judgment, the High Court of Katsina State in its appellate jurisdiction stated that a Court that visits a locus in quo, especially if it is a Court governed by the Islamic Rules of Procedure, is at liberty to appoint assessment for it. Further at page 44 of the record, the said High Court said that there is an indication on the record that the trial Court had been to the locus in quo in the company of Musa Gyaza, M. Lawal D/Musa, the Plaintiff and his representatives M. Ibrahim and Mai Unguwa Lawal (1st Appellant).
The record shows that the court was represented by Gyaza and M. Lawal D/Musa during the visit to the locus in quo. No procedural rule or law was shown to have been relied upon by the trial Upper Sharia court authorising that the court’s duty to carry out the inspection could be delegated to some other persons. The High Court of Katsina State did not provide the Rules under which such a sacred duty of the Court, could be delegated. Even in the case of Mafolaku vs. Alamu, Sharia Law Reports of Nigeria Vol. I p. 105, it was held that it is not necessary that when a locus is inspected by the Court, evidence must be taken there and then. The normal practice is that after the inspection, the hearing is resumed in Court when witnesses who were at the inspection shall be called to testify. It is worthy to note that it was never implied in Mafolaku’s case (supra) that the Court’s duty to conduct the inspection or to visit locus in quo could be delegated to clerks or messengers of the Court or only assessors.
It should be recalled that the grouse of the Appellants is not that assessors were appointed but that the mandatory duty of the Court to visit the locus was not in fact carried out by the Court itself. It was delegated to Musa Gyaza and M. Lawal D/Musa. I must note with all respect that it was never indicated on the record that the trial Upper Sharia Court presided over by Bello Usman with Suleiman Buhari, Usman Moh’d and Ahmed Salidu, as members visited the locus in quo.
In this case, it was never indicated that the Court visited the locus in quo, rather it was stated that the Court was represented by the two gentlemen mentioned above. Assessors are definitely different from the Court itself. According to Oxford Advanced Learner’s Dictionary, 7th Edition at p. 75, the word ‘assessor’ can also be defined as “an expert in a particular subject who is asked by a Court or other official group to give advice or “a person who calculates the value or cost of something or the amount of money to be paid”.
I am afraid, the record of proceedings of the trial Upper Sharia Court seemed a bit muddled up and obviously disjointed. For instance, page 7 of the record supposedly contains the proceedings of 6/10/2004, but, a careful study of the entries thereunder suggests that the recorded proceeding was in respect of the proceedings of 5/10/05. It says inter-alia; “Today 5/10/05 this Court was represented by Musa Gyaza and M. Lawal D/Musa (messenger) …”.
I am afraid, the record did not indicate or assert that the Court physically conducted the inspection or visited the locus. It clearly stated that the Court was represented by Musa Gyaza and M. Lawal D/Musa (messenger). To represent a person according to Oxford Advanced Learner’s Dictionary 7th Edition at p. 1239 means; “to be a member of a group of people and act or speak on their behalf at an event, a meeting, e.t.c. or to act or speak officially for somebody and defend their interests”.
As I earlier observed the stated representatives of the trial Upper Sharia Court at the visit to locus were not members of the Judges of the said trial Court. They were mere staff of the Court.
It is my candid view that be it Sharia Court proceedings or proceedings under a common law system, a Court is under a duty to visit the locus in quo or inspect the subject matter of the action since by the visit, it is shifting its proceedings i.e., proceedings of the Court thereto. Since it was boldly and succinctly stated that the Court was represented by Musa Gyaza and M. Lawal D/Musa, it seems clear that the visit to the locus in quo was not conducted by the trial Upper Sharia Court and as such the conduct is bereft of all legal principles and cannot be remedied or rectified in any form. See the case of Olanudu vs. Temiye (supra). The record of this appeal clearly shows that the trial Upper Sharia Court was represented by the said staff of the Court during the visit to the locus in quo and it was in clear breach of the trial Court’s fundamental duty. In this regard, issue No. 2 is hereby resolved in favour of tire Appellants.
I would lastly consider the question raised in issue No. 3, that is, “whether the High Court of Justice, Katsina State was right to admit and use through motion bunch of uncertified documents as evidence of payment of filing fees”. It should be noted that in the motion filed by the Respondent on 30/11/06, one of the prayers sought for was; “an order of Court incorporating the bunch of documents annexed to the affidavit as Exhibit A as part of the record of proceeding of the Upper Sharia Court Dutsin-Ma already transmitted to the Court by the Appellants”. It was averred at paragraph 2 of the said affidavit that the Respondent paid the filing fee for his case and that a single receipt was issued in respect of all the cases filed in the said trial Upper Sharia Court, by the Respondent’s Counsel, inclusive of the Respondent’s case and a list of all the cases filed including the Respondent’s own was attached to the certified copy of the triplicate copy of the receipt attached to the affidavit. It is clear by the deposition that the copy of the triplicate copy of the receipt issued to the Respondent’s Counsel in respect of the cases including the Respondent’s case filed by him thereat, was certified, and, the same was not refuted by the Appellants. This court, therefore, cannot fault the views expressed by the High Court of Katsina state that it was satisfied by the document forwarded and that the filing fee was paid by the Respondent. Accordingly, issue No. 3 is hereby resolved in favour of the Respondent.
It is an established principle of law that under the Sharia as well as under the Common Law, an appellate Court will not interfere with the findings of facts by trial Courts and Courts below unless such findings cannot be justified by the evidence adduced at the trial Court. In the instant case the statement of claim of the Respondent is unsupported by any material fact or evidence adduced by the Respondent at the trial.
Therefore, having earlier on resolved issues Nos. 1, 4 and 2 in favour of the Appellants, this appeal will be and is hereby allowed by me. consequently, the judgment of the High court of Katsina State sitting in its appellate jurisdiction is hereby set aside. Further the judgment of the trial upper Sharia court is hereby set aside. As a result, suit No. 463/04 filed by the Respondent at the upper Sharia court Dutsin-Ma is hereby dismissed for failure to state the claim in clear, unambiguous and categorical terms, that is to say, for being too vague and wide, and, too, for want of proof, I make no order as to costs.

JOSEPH TINE TUR, J.C.A.: I have read in advance the judgment just delivered by my Lord THERESA NGOLIKA ORJI-ABADUA, JCA, and I give my reasons for concurring in the conclusions arrived at.
The trial took place before the upper sharia court Dutsinma in, Katsina state wherein the court ordered the defendants/appellants to pay  N160,000.00 compensation to the Respondents on a claim that read before the Upper Sharia Court as follows:
“CAUSE OF ACTION:
Plaintiff statement of claim:
I suing the defendants i.e Mai (Unguwa Lawal, Alhaji. Isa and Mai Bera because they ate away my crops planted in my farm.
3rd defendant Mari Bera was not in court today. ”
The appeal went to the High Court of Justice, Katsina State. The appeal was dismissed on 13-07-2007. Appellants filed the appeal to this Court on 04-05-2007. When the claim was read in the Upper Sharia Court the defendants denied liability to the claim. Looking at the claim as framed it will appear as if it is the defendants as human beings that entered the plaintiff s farmland to “eat away” the crops planted on it. However, on 02-09-2004 when hearing commenced PW1 whose name was simply given as “Abu Aged 40 years” testified as follows:
“PW1: I saw the cattle of Lawal and that of Alhaji Isa in the farm of Audu eating away his guinea-corn. That’s all.”
The defendants did not agree with the above testimony but had no questions for PW1. Then the following questions were put by the court to the plaintiff s representative and to PW1.
“Question:  Do you hear and agree to what pw1 said?
Answer:     I heard and also agree to what he said.
Question:     Any re-examination?
Answer:     Yes, and my question is, the witness said he saw the cows of Alh- Isa and Lawal in the farm, is it the defendants he saw or their children?
PW1:     It was their children I saw that is to say Kadi, who’s from Alh. Isa’s house and Inger who is from Alh. Lawal’s House. ”
Pw2 was M. Ali, aged 27 years. He testified thus:
“PW2:     For the sake of Allah I share boundary with the owner of the farm. I saw Ingel and Chiori the farm of Alhaji Audu and they are destroying his crops. They pass through his farm into my farm. That’s all I know.”
Alhaji Lawal had no questions for PW2. But the Court gave opportunity to the plaintiffs representative to cross-examine. PW1. This is what transpired on the records:
“Court –     Plaintiff’s representative.
Question:     Do you hear what your witness testify to?
Answer:     I heard.
Question:     Do you understand?
Answer:     Yes.
Question:     Do you agree?
Answer:     Yes.
Question:     Any re-examination?
Answer:     Yes.
Question:     Were is the position of your farm to that of Audu?
Answer:     My farm is on the southern side of that of Audu.
Question:     Can you be able to see what’s happening in Audu’s farm while you are in your farm?
Answer:     Yes very clearly.
Question:     Did you see those boys and their cattle really causing destruction?
Answer:     Between me and my God, I saw them; it’s not that I am trying to indict them.
Court:        Case is adjourned to 09-09-2004 to enable the Court pay a visit to the farm in issue in order to see for itself damage done to the farm.”
Every Appeal Court is permitted to look at the claims, evidence and findings given in these Courts determine what were the real issues in dispute and the decision actually arrived at. See Fabunmi Family vs Delegan (1965) NMLR 369 at 372; Aleriwa vs Akinsola (1973) 3 ECSLR (pt.11) 921 at 927; Ajagunjeun vs Osho (1977) 5 SC 89 at 101-104; Iyaji vs Eyigebe (1987) 7 SCNJ 148 at 157; Olujinle vs Adeagbo (198s) 2 NWLR (pt.75) 238 at 251 and Ajayi vs Aina 16 NLR 67.
Rather than the judges of the Upper Sharia Court embarking on an inspection of the farmland to determine the extent of the damage caused to the guinea-corn by the cattle, which is cattle trespass, the record of the trial Court on 09-09-2004 is as follows:
“At the last adjourned date this Court adjourned in order to visit the farm in issue to see the damage alleged to have been done to the farm.
Today 05-10-2005 this court was represented by Musu Gyaza and M, Lawal D/Musa (messenger) together with the plaintiff and his representative. M. Ibrahim and Mai Unguwa Lawal where at the farm where we meet Mai Unguwa Bawa and Danjuma Kwari with their people,
GROUP “A”:
(1) Salisu
(2) Halliru Audu
(3) Abu Ibrahim
They assessed as 40 bags of guinea-corn valued at N160,000.00.
GROAP “B”:
(l) Abu Mamman
(2) Idris Usman
(3) Abu Na Bako
They assessed as 70 bags of guinea-corn valued at N280,000.00.
GROUP “C”:
(1) Lawal Tela
(2) Mai Unguwa Bawa
(3) Isiya Ramau
They assessed it as 40 bags guinea-corn valued at N160,000.00. ”
The records clearly shows that the presiding Judge and the Assistant Judge did not inspect the farmland but represented by messengers categorized as Group “A”, “B” and “C”. Group “A” and “C” assessed that 40 bags of guinea corn were destroyed by the cows valued N160, 000.00. But Group “B” put the destroyed guinea corn at 70 bags, which they valued at N280,000.00. The plaintiff then closed his case. On 01-06-2005 appeared the following entries in the judgment of the Upper Sharia Court at page 10 line 19-27 and page 11 lines 1-3 of the printed record:
“Audu Kulere
Mai Unguwa Lawal & 1 Other.
This case was today 01-06-2005 call upon whereby the plaintiff and his Counsel are in Court in which they are suing Mai Unguwa Lawal and 2 others.
I’Izari
Court – plaintiff’s Counsel:
Question: This Court had decided to base its consideration with regards to the three assessments made on the value of the damage cause to the amount of N160, 000.00. What do you say?
Answer: I heard and agree with the courts consideration.
Question: Do you have any other thing to say?
Answer: None. ”
There is no evidence why the Court preferred the assessment by Group “A” and “C” against that by Group “B”. No oral evidence was given by any of the Group of assessors.
All adjournments to enable the defendants/Appellants open their defense failed hence the Alkali and his Assistants made the following findings at page 13 lines 1-16 of the judgment of the trial Court on:
“…On the issue about the damage caused here there are different opinion expressed by Islamic scholars, some are of the view that destruction to crops by animals caused during night time should be compensated for but not that which was caused during day time. This can be seen in Fik Hussunah page:
Some scholars are of the view that compensation should be paid for destruction caused during day time if the animals are in control of someone. This is the popular opinion of scholars together with Malik. Some other scholars amongst Sunni are of the view that destruction caused during daytime shall only be compensated for if it was caused in cities but in villages only farms which are fenced that are to be compensated.
JUDGMENT
I. M. Bello Usman, Upper Shari’a Court Judge D/ma together with my Assistants Judges i.e Alh. Suleiman Buhari, M. Umar Moh’d and M. Mustapha Nuhu hereby ordered that you
1. Mai Unguwa Lawal, 2. Alh. Isa and 3. Mati Bera to pay the sum of N160, 000.00 to A. Audu because of the destruction caused to his crops in his farm by your cattle, reliance was placed on the earlier provision of the law cited above.”
So, was the destruction caused in the day time or night time? Which view did the Alkali and his members apply – Fik Hussunah, Malik or Sunni?
There is no answer and no evidence!!
Why the trial Court preferred the assessment of the damage to the guinea corn which was put at N160, 000.00 but not the N280,000.00 value of the seventy bags destroyed was not explained by the Court. Yet when judgment went on appeal to the High Court of Justice Katsina sitting and exercising appellate jurisdiction, arguments were taken from learned Counsel appearing for the parties. The High Court of Justice expressed the opinion that the defendants/appellants would not appear to defend themselves despite series of adjournments, “Consequently, the issue of the types of crops destroyed would not arise. So also the issue of the quantity involved.” See page 42 lines 23-24 of the printed record. On the issue of the visit to the locus in quo their Lordships in the High Court of Justice sitting on Appeal further held at page 44 lines 1-26 and page 45 lines 1-27 as follows:
“On the 2nd and 4th grounds. On these grounds the appellants via their Counsel contended that the assessment of the alleged destruction to the crops was done by persons other than the Court and that the appellants were not represented.
At the risk of repeating one selves (because the learned Counsel seemed to have mixed up his argument on them) we have to reiterate that the record indicates that the Court had been to the locus in quo in the company of Musa Gyuza, M. Lawal D/Musa, the plaintiff and his representative M. Ibrahim and Mai Unguwa Lawal (the 1st appellant) refer to the proceedings of 06-10-2004 in the printed records of the trial Court (the pages are un numbered). The Court also set up three groups of assessors and the groups came up with three figures two of which were the same and accepted by the Court.
The first group “A” came up with an estimated damage of 40 bags of guinea corn valued at N160, 000.00. The same figure was arrived at by group “C”. It was that figure that the Court preferred over the assessment of the 2nd group (Group “B”) which came up with an estimated damage of 70 bags of guinea corn valued at N280, 000.00.
We accept the submission as already pointed out (supra) that the Court is at liberty to appoint a team of assessors to conduct an assessment for it and report its findings to the Court. The mere fact that the assessment was conducted by persons different from the Court cannot render the entire process invalid. This is more true under Islamic Law of Procedure as the Holy Qur’an itself encourages consultation between leaders and the led in the Surat “Shurat” which in the ordinary parlance means consultation.
It cannot be correct also to say that the appellants were absent when the visit to locus in quo was conducted. That itself is a contradiction because if you claim that the Court did not do the assessment of the destruction, how can you turn and allege that the appellants were not represented.
As has been quite clearly shown, the appellants and their Counsel (with all due respect, continued to treat the whole matter with disdain and levity and came or went to Court only when it pleased them. The record particularly, the second half of it, is replete with this obvious fact. And as already observed, you may decide to keep away from court even if you are aware that your case is going on but you would certainly bear the burnt.
Finally, we are convinced that bearing in mind the absolute authority of the Court under the Islamic rules of procedure which clothe the court with the power of determining, who should be the plaintiff and who should be the defendant regardless of who had filed the case but with due regard to the complaint before it cannot be true to classify a complaint by an aggrieved party to the Court his farmland had been raided and destroyed by cattle belonging to another, as vague.
Any amount fixed without a full assessment of the destruction would be mere conjecture and no harm is done if the task of making the assessment is left to the Court.”
The High Court sitting on appeal dismissed the appeal. On 04-05-2007 the appellants approached this Court by filing five grounds of appeal (see p.47-49 of the printed record) from which four  issues were set out for determination. The issues and arguments have been reproduced by My Lord THERESA N. ORJI-ABADUA JCA.
Order 2 rule 1-9 of the Sharia Courts (Civil Procedure) Rules 2008 provides as follows:
“1. No Court shall entertain a cause or matter which it considers it has no jurisdiction or not sufficient powers to try, but transfer or obtain the transfer of the cause or matter to a Court of appropriate and competent jurisdiction or powers.
2. Every civil cause shall be commenced by a complaint made in person or by the authorized representative of the person making complaint.
3. On the institution of a cause or matter made under the provisions of these Rules before a Court, the Court shall cause the clerk to enter the substance of such or matter in books to be kept for the purpose as prescribed in Order 27.
4. A Court shall refuse to entertain a cause or matter if the said cause or matter fails to disclose say cause of action and any refusal under the provisions of this together with the grounds therefore shall be entered in the appropriate record:
Provided that the refusal to entertain a complaint under this Rule shall not by reason only of such refusal preclude the plaintiff from presenting a fresh complaint in respect of the same cause of action.
5. The Court may if alt the necessary parties are present dispense with the requirements of these Rules or the Rules contained in Order 3 as to issue and service of process or a to any steps to be taken before case is ready for trial and proceed forthwith to the trial of the case.
6. Upon a complaint in any cause or matter being made to a Court, such Court shall ascertain the details thereof and if the court decides to issue a summons in the first instance such summons shall be directed to the person against whom the complaint is made requiring him to appear at a certain time and place before the Court to answer the complaint.
7. Any fee paid in respect of the issue of a summons shall be entered thereon by the clerk and a Court receipt shall be issued to the complaint.
8. The Court may, if it thinks fit with consent of the parties hear and determine a complaint notwithstanding that the time within which the defendant was required to appear may have elapsed.
9. Every summons issued by a Court under these Rules shall be in writing, in duplicate signed by the Alkali of such Court and in the form prescribed by these Rules.”
what then is a cause of action? In savage vs Uwechia (1972) 3 SC 214 at 221 the supreme Court defined the phrase as follows:
“A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consist of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke vs Gill (1973) L.R. 8 C.P. 107 and later in Read vs Brown (1888) 22 QBD 128 (C.A), it is every fact that it would be necessary for the plaintiff to prove, if reversed, in order to support his right to the judgment of the court (see also Kusada vs Sokoto Native Authority, SC 131/68 delivered on 13th December, 1968, where the definition in Read vs Brown (supra) was referred to with approval”.
The trial was in the upper Sharia court Dutsinma. Nevertheless the onus was on the plaintiff/Respondent to prove the two elements that constitute a cause of action so as to be entitled to judgment, namely, the acts of the cattle trespassing to destroy the guinea corn and the consequent damage. Neither in the complaint lodged by the plaintiff nor in the oral evidence  adduced in court was any value put on the destroyed guinea corn. Therefore there was no cause of action when the complaint was received and recorded by the clerk of Court. The trial Upper Sharia Court should have refused the complaint or asked for details before issuing the summons.
Upper Sharia Courts established for Katsina State are to refuse or accept entertain causes or matters if they fail to disclose any cause of action. By Order 2 rule I of the Rules supra hearing is to be conducted in accordance with Islamic Law and Practice of the Maliki School. However, Order 13 rules 4 and 5 of the Rules provides as follows:
“4. All evidence given before a court and the method by which such evidence may be given and by a Court shall be in accordance with Islamic Law and Practice of Maliki School.
5. The Alkali or Sharia court shall write in the appropriate record book the oral evidence given before the Court.”
Musa Gyaza and M. Lawal D/Musa (messengers) and the plaintiff and his representative M. Ibrahim and Mai Unguwa Lawal met Mai Unguwa Bawa and Danjuma with their people on the farmland on 05-10-2005. Those who assessed the damage to the guinea corn were grouped into “A”, “B” and “C”.
They never testified as witnesses.
Accordingly, all the evidence they gave and the method by which such evidence was given was not in accordance with Order 13 rule 4-5 of the Sharia Court (Civil Procedure Rules) or Islamic Law and Practice of the Maliki School. The Alkali of the Court should have written their oral evidence before the Court in the appropriate record book in accordance with Order 13 rules 4 and 5 of the Rules. That was not the case in the Upper Sharia Court. Thus one is unable to arrive at a decision how the Upper Sharia Court came to prefer the award of N160,000.00 by Group “A” and “C” contrary to the assessment by Group “B” that valued Same at N280,000.00 seventy bags having been destroyed by the cows. The Alkali was bound to record all oral evidence given before the Court since his judgment may be subjected to appeal. Any Appeal Court should be in a position to know the reasons the Alkali entered judgment in favour of the successful litigant. Indeed an appeal was lodged against the decision of the Upper Sharia Court Dutsinma on 20-06-2005 to the High Court of Justice rather than the Sharia Court of Appeal in Katsina, Katsina State as provided under Section 33 of the Sharia Courts Law No.5 of 2000 which came into effect on 01-08-2000. The High Court exercising her appellate jurisdiction, dismissed the appeal: The appellant not being satisfied with the judgment of the High Court appealed to the Court of Appeal on 04-0 5-2007 . This appeal has not emanated from the decision of a Sharia Court of Appeal (See Section 244 (1), (2)(a) (b) and 247(1) (a) of the Constitution of the Federal Republic of Nigeria 1999) but from the High Court of Justice in Katsina sitting and exercising appellate jurisdiction (see Sections 241(1)(a) and 242(1) of the Constitution supra) in which case, though the cause and matter was tried in the Upper Sharia Court at Dutsinma under Islamic Law and Practice of the Maliki School, this Court is competent to determine this appeal. Section 30(1) of the Sharia Court Law No.5 of 2000 provides as follows:
“30(1) In any cause or matter it shall be lawful for a Sharia Court, on the application of either party or on its own motion to:-
(a) make such order as the Court may think fit for the inspection by the Sharia Court in company of the parties or any witness of any immovable or movable property the inspection of which may be material to the proper determination of the question in dispute; and
(b) give such direction as the Court may think fit in respect of such inspection.”
Inspection of the farmland to see the extent of the damage to the guinea corn was to be conducted by “the Sharia Court” in company of “the parties or any witness” if the Court considered that the inspection may be material to the proper determination of the question in dispute. Section 30(1) and (2) of the Law supra is not a licence or authority for messengers or assessors who were not witnesses to the farmland. Inspection of movable or immovable property the inspection of which may be material to the proper determination of the question in dispute is not to be by messengers nor what the learned Justices of the High Court called “assessors” at page 44 lines 5-18 of the printed record. Assessors are mere advisers to the Court; they have no votes in determining the matters in controversy. See Adeigbe & Anor vs Kusimo & Ors (1965) NMLR 284 at 288.
An “assessor” is one who evaluates or makes assessments, especially for the purposes of taxation, or he or she is a person who advises a Judge or Magistrate about scientific or technical matters during trial. On the other hand a “witness” is one who sees, knows or vouches for evidence under oath or affirmation (1) in person (2) by oral or written deposition, or (3) by affidavit. A witness must be legally competent to testify. See Blacks Law Dictionary, 8th edition pages 125 and 1633. A “witness” in strict legal sense, means one who gives evidence in a cause before a Court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affidavits as well as persons delivering oral testimony before a Court. See 97 (C.J.S, witnesses (1957) 1 at page 350 cited in Blacks Law Dictionary supra p.1633.
In this case none of the assessors gave oral evidence, neither the messengers, hence they could not be said to be witnesses within the contemplation of Section 30(1) and (a) of the Sharia Courts Law No.5 of 2000. I am of the firm view that the learned Justices of the High Court erred in holding at page 44 lines 19-26 of the printed record when they held as follows:
“we accept the submission as already pointed out (supra) that the Court is at liberty to appoint a team of assessors to conduct an assessment for it and report its findings to the Court. The mere fact that the assessment was conducted by persons deferent from the Court cannot render the entire process invalid. This is more true under Islamic Law of procedure us the Holy Qar’an itself encourages consultation between leaders and the led in the surat “shurat” which in the ordinary parlance means consultation.”
There is no provisions under Section 30(1) (a) of the Law supra for the use of assessors in inspecting movable or immovable property except they come within the term “witness” or “witnesses” ‘so they could testify if the need arises The Upper Sharia Court abdicated her role in adjudication. The inspection forms an important part of the trial for it may be material to the proper determination of the question in dispute between the parties. The High Court of Justice, Katsina State recognized this fact when their Lordships held at page 45 lines 19-21 of the printed record that:
“Any amount fixed without a full assessment of the destruction would be mere conjecture and no harm is done if the task of making the assessment is left to the Court.”
This is precisely the complaint by the appellants in this appeal, namely, that the assessment of damages should not be a matter of conjecture but should have been left to the plaintiff or the witnesses to prove damages. In The State vs The president Grade “A” customary court Ijebu-ode Exp. N.B. Bakare (1971) 1 NMLR 406 Ayoola J., (as he then was) construed the word “court” in section 53(b) of the customary court Law applicable in Ijebu-Ode as follows:
“The section uses the word “court” which in its strict legal meaning connotes the institution and not the person of whoever is presiding in that Court at any point of time.”
In Ogundiani vs Araba (1978) 1 LRN 280 Idigbe JSC (of blessed memory) also drew a distinction between the word “court” when used by the draftsman in a Statute or Law as against when used in a Rule of Court in the following language at pages 286-287:
“…the expression “the court” in section 22 of the High court Law must mean the Court sitting en banc (being an expression used in the Act of Parliament, that is, a substantive statute) but that expression (i.e “the court’) when used in “rules” made pursuant to an Act of Parliament (or a substantive statute) does not necessarily mean the court sitting in en banc; it can, and quite often does, mean the Judge or the Court sitting in Chambers and sometimes mean a master or the registrar; see Baker vs Oakes (1577) 2 QBD 171 and the supreme Court Practice, 1976, Vol.2, paragraph 2004.”
The jurisdiction to inspect movable or immovable property in the course of trial is conferred on the Upper Sharia Court by substantive Law, namely Section 30(1) and (2) of the Sharia Courts Law No.5 of 2000 but not the Sharia Court’s (Civil Procedure) Rules 2008. Therefore, when it is provided under Section 30(1) and (2) of the Law supra that inspection is to be conducted by “…the Sharia Court in company of the parties or any witness”, it means it is the presiding Sharia Alkali and the Assistants or members constituting the Court under Section 4(1) of the Law supra that shall carry out the inspection in company of the parties and the witnesses. I also hold that there was no evidence for the Upper Sharia Court to have awarded N160, 000.00 to the Respondent when the claim was not proved. Neither could the High Court of Justice have upheld or at firmed the said judgment. I set aside the judgments of the two Courts below and abide by the orders of my Lord, THERESA T.N. ORJI-ABADUA, JCA.

OBANDE OGBUINYA, J.C.A.: I have had the privilege of reading, in draft, the leading judgment delivered by my learned brother, T. N. Orji-Abadua, JCA, and I agree with her reasons and conclusions. Since the facts, issues and arguments are well set out in the leading judgment it is pointless to duplicate them.
A careful perusal of the evidence proffered by the respondent in the trial upper sharia court, via pw1 and pw2, demonstrate that they were economical with the truth vis-a-vis his terse claim before that court. Those testimonies are not worthy of belief and, ipsa facto, void of any credit. In the case of Agbi v. ogbeh (2006) 11 NWLR (Pt.990) 65 at 116, Musdapher, JSC, succinctly defined credible evidence thus:
“… Credible evidence in this connection means the evidence worthy of belief and for evidence to be worthy of belief and credit, it must not only proceed from credible sense, it must be credible in the entire circumstances.”
see, also, Dim v. Enemuo (2009) 10 NWLR (Pt.1149) 353. In view of the fact that the evidence of the respondent were not only inconsistent, but antithetical to his sparse and imprecise claim, I will not crown them (the evidence) with any toga of credibility. It follows that the court below was wrong when it accorded the testimonies credit by affirming the decision of the trial upper Sharia court. Besides, it was an aberration in adjectival law for the trial Upper Sharia Court to assign its function of visit to locus in quo to the staff of the court. By law, visit to locus in quo is a function that is within the exclusive monopoly of adjudicating court not duty of court officials. Explaining the essence of visit to locus in quo, in the case of Ukaegbu v. Nwololo (2009) 3 NWLR (Pt.1127) 194 at 238, Ogbuagu, JSC, opined:
“A trial Judge who has a clear doubt that he felt arose from the evidence, either on the invitation of one of the parties or by both parties or suo motu, can visit a land in dispute, in order to confirm what is already on the record with the actual physical inspection in keeping with the adage that “seeing is believing.” He will then “substitute the eye for the ear”
see, also, Enigwe v. Akaigwe (t992)2 NWLR (pt. 225) 505; Shekse v. Plankshak (2008) 15 NWLR (Pt.1109) 105.
The trial upper sharia court woke up to its bounden duty, regarding the visit to lacus in quo, when on 06/10/2004, it ruled: “At the last adjourned date this court, adjourned in order to visit the farm in issue to see the damage alleged to have been done to the farm.” Incidentally, that court never kept faith with its proceeding as it sent Musa Gyaza and M. Lawal D/Musa, court officials, to do the visit. In that wise, it goofed. I dare say, it is a sacrilege of judicial procedure. The court below, to my mind, was in visible error when it endorsed the wrongful conduct of the trial upper Area court.
For the above reasons, in addition to detailed reasons adduced in the leading judgment I too allow the appeal’ Accordingly, I set aside the judgment court below.

Appearances

Ahmed M. Danbaba Esq.For Appellant

AND

For Respondent