MOHAMMED v. ILIYASU & ANOR (2020)

MOHAMMED v. ILIYASU & ANOR

(2020)LCN/14419(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, July 14, 2020

CA/K/610/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

HAJIYA RASHIDA MOHAMMED APPELANT(S)

And

1. ALHAJI HAMISU ILIYASU 2. ABDULRAZAK ALHAJI SULE LIMAN RESPONDENT(S)

RATIO

THE PRIMARY FUNCTION OF THE TRIAL COURT

It is settled law that the assessment and credibility of witnesses is the primary function of the trial Court which had the singular opportunity of seeing and observing the witnesses. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. SeeAll Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
It is also settled law that when an Appeal Court addresses questions of fact, it should accord high regard to the findings of the trial Court, since that Court saw the witnesses, was able to assess them and made findings on demeanour, which an Appeal Court cannot easily dislodge. The appellate Court, it has been held, should not substitute its own opinion of the evidence for that of the lower Court. See Awodi v. Ajagbe (2015) 3 NWLR Part 1447 Page 578 at 612 Para F-G; (2015) All FWLR Part 769 Page 1129 at 1155 Para A-C per Rhodes Vivour JSC.
Where, however, the trial Court made perverse findings or where on the face of the record, it is clear that justice had not been done in the case, the appellate Court can intervene.
A decision is said to be perverse where:
1. It is speculative and not based on a proper appraisal of the evidence; or any evidence; or
2. The Court took into account matters which it ought not to have taken into account; or
3. The Court has ignored the obvious.

There is a misapplication of the law to findings of fact properly made; or
5. There has been a miscarriage of justice occasioned by an error in procedural or substantive law – Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 337 at 375 Para B-C; (2015) All FWLR Part 793 Page 1824 at 1849-1850 Para H-A per Kekere-Ekun JSC; Uwah v. Akpabio (2014) 7 NWLR Part 1407 Page 472 at 488 Para F-G per M.D Muhammad JSC; Gbemisola v. Bolarinwa (2014) 9 NWLR Part 1411 Page 1 at 41-42 Para G-C per Ogunbiyi JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE DOCTRINE OF “HAUZI”

In the case of Lawan Abubakar & Anor V. Bulama Bashir (2017) LPELR-43272 (CA), this Court, per Abiru JCA held:
“The concept of ownership by long possession and enjoyment of land relied upon by the Appellants in their claim to the land in dispute is recognized under Islamic Law. It is called Hauzi – prescription. This doctrine postulates that where a person has been in peaceful enjoyment or possession of land without a challenge for ten years he thereby acquires a title by Hauzi (Prescription) against any person who claims to be true or original owner of such land during that period. In other words, where a party had been dealing with land in all manners as to show that he is the absolute owner for over a period of at least ten years, he will be deemed to be the owner of the land and the burden of proving that he is not the owner is on the other party.
This was explained by Adamu, JCA in Kwadage Vs Bakore (1996) 3 NWLR (Pt 437) 472 at 481 C-E thus:
“In Ihkamul-Ahkam … Hauzi (or long possession as described above) is regarded as analogous to evidence of a witness as it is a silent testimony in favour of the Possessor.” PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Katsina State High Court, delivered on 12/12/2017, coram Abdullahi Yusuf Hon. Chief Judge, I.M. Bako and Baraka Ilyasu Wali, Hon. Judges, sitting in their appellate capacity.

The Appellant in this appeal was the 2nd Defendant at the Upper Sharia Court No. 2 Katsina (hereafter referred to as “the Trial Court”), in a suit filed by the 1st Respondent, Alhaji Hamisu Iliyasu, as Plaintiff, against the 2nd Respondent, as 1st Defendant and the Appellant as 2nd Defendant.

The 1st Respondent, in that suit claimed against the 2nd Respondent and the Appellant for the return of his farmland sold to him by the 2nd Respondent but which had been “seized” by the Appellant. He accused the 2nd Respondent of conspiring with the Appellant to report him to the Emirate Council, who decided that the farmland belongs to the Appellant and not to the 2nd Respondent. Aggrieved by this decision, he instituted an action, as aforesaid, at the Upper Sharia Court to reclaim his farmland. Witnesses were taken, with the 1st Respondent producing,

in addition, the sale transaction between him and the 2nd Respondent. The trial Court, coram Mal. Ibrahim Korau, Judge and M. Abdullahi, with Muh’d Dikko, Members, in a judgment delivered on 17/1/2017, held itself satisfied that the sale actually took place between the 1st and 2nd Respondents, witnessed by the Ward Head and the Village Head, over 14 years ago and that the 1st Respondent had been cultivating the land for over 14 years without any disturbance from the Appellant or her witnesses. It thereupon gave judgment in favour of the 1st Respondent.

Aggrieved, the Appellant appealed to the High Court of Katsina State, sitting as aforesaid, in its Appellate jurisdiction (hereafter referred to as “the Lower Court”). The Court, delivering its judgment, dismissed the appeal of the Appellant and affirmed the decision of the Trial Court. Again aggrieved, the Appellant has appealed to this Court by Notice of Appeal filed on 2/10/18.

The Appellant’s Brief of Arguments was filed on 4/1/19, settled by Abdul Aliyu Esq., of Adalchi Chambers, in which two issues were formulated for determination, namely:
1. Whether the trial Judges

were not in error when they failed to hold that there was no any valid sale transaction between the Plaintiff/1st Respondent and the 2nd Defendant/2nd Respondent.
2. Whether the learned trial Judges were not in error when they failed to apply correctly the principles of Hauzi in the circumstances of this case.

The 1st Respondent’s Counsel, M.I. Zakariya of M.I. Zakariya & Co. in 1st Respondent’s Brief of Arguments filed on 8/3/19 but deemed properly filed on 7/5/19, similarly distilled two issues for determination, as follows:
1. Whether the sale transaction of the farmland in dispute between the 1st Defendant/2nd Respondent and the Plaintiff/1st Respondent can be said to be valid in law.
2. Considering the lengthy period within which the Plaintiff/1st Respondent is in undisturbed possession of the farmland, can he be said to have acquired title by Hauzi.
The Appellant filed a Reply Brief on 14/5/2019.
I shall adopt the Appellant’s issues as those which arise for determination, with slight amendments for clarity.
The 1st issue for determination, is:
Whether the trial Judges were not in error when

they failed to hold that there was no valid sale transaction between the 1st Respondent and the 2nd Respondent.

SUBMISSIONS
The Appellant’s Counsel has contended that the 2nd Respondent who sold the farmland to the 1st Respondent was said by his son not to have any title to pass to him. Counsel considered this an admission against interest and should not be allowed to be retracted it. He submitted that the lower Court failed to properly evaluate the evidence. He cited the cases of Hada Vs Malumfashi (1993) 7 NWLR (PART 301) 1 and GWABRO VS GWABRO (1998) 4 NWLR (PT 544) 60 PAGE 70 PARA C on the consequences of admission under Islamic Law being binding on its maker.

The Respondent’s Counsel however reminded the Court that the allegation of the 1st Respondent before the trial Court is that 2nd Respondent, from whom he bought the land, conspired with the Appellant to “confiscate” it, claiming that the land belongs to the Appellant. Whatever statement was made by him claiming that the land belonged to the Appellant and that he sold the land to the 1st Respondent, is thus only binding on him, being the maker and is not binding

on the 1st Respondent. A statement admitting the claim of another person cannot qualify as an admission against the Appellant, he contended.

Counsel also pointed to the conflicts and discrepancies in the evidence of the witnesses of the Appellant and the 2nd Respondent. While some of them alleged that the land belonged to the 2nd Respondent, some alleged that the land belonged to the Appellant by inheritance, yet others said it was a gift to her by her father. He wondered that even assuming the land belonged to the Appellant, why did she not object to the sale which had taken place 14 years prior? He submitted that the owner of a property cannot object to or rescind a sale agreement that was done with her knowledge, without her objecting promptly. He cited the case of Umma & Anor. V. Alhaji Iliya Bafullace (1997) LPELR-6341 (CA).

In his Reply Brief, the Appellant’s Counsel accused the trial Court of failing to adequately consider the case of the defence witnesses. He itemized the testimony of the various witnesses, citing further authorities, which I note constitute a re-argument of the initial Brief. While conceding that appellate Courts

do not usually interfere with findings of fact made by the trial Judge, gave as the exception where there is evidence that the Court of trial failed to evaluate the evidence and make appropriate findings. This Court, he said, is in as good a position as the trial Court to make appropriate findings.

DECISION
I note, from the record of appeal, that the trial Court set out the evidence of each of the witnesses, evaluated the same and held, at Page 44:
“In the final analysis the Court was satisfied with the sale agreement letter Exhibit A that the sale transaction took place between Alh. Hamisu and Alh. Sule 14 years and some months ago because he transacted the sale in the presence of witnesses, like the Ward Head and the Village Head and that the sale transaction was not done in hiding and the Ward Head, the Village Head and have accordingly signed the sale agreement letter (sic). Therefore the Sale Agreement is a thing to rely on as it is provided in the Holy Qur’an suratul Baqra verse 282.”
It thence held:
“Based on the weight of evidence the Plaintiff have (sic) proved his case because his witnesses and those of

the Defendant have confirmed that he bought the farmland 14 years ago and he has been cultivating it without anybody talking to him ….The Plaintiff Alh. Hamisu has been cultivating the place for the period of 14 years but Hajiya Rashida have (sic) never claimed the farmland to have belong to her (sic) her relatives have been seeing him cultivating the farmland but nobody ever told Alh. Hamisu that the farmland belong to Hajiya Rashida 14 years ago… ”

Applying the Islamic principle of “Hauzi” (Prescription), the Court held that the Appellant could not avoid the operation of the doctrine in favour of the 1st Respondent, as she did not come under any of the exceptions allowed.

On appeal to the Lower Court, the Court acknowledged the contention of the Appellant that she was away in Mecca when her farmland was sold to the 1st Respondent by the 2nd Respondent. It also held that “the evidence of PW1-PW5 all confirmed the sale of the land to the 1st Respondent by the 2nd Respondent more than 14 years ago.”

Referring to the evidence before the lower Court, the Court held at Pages 71-73 of the Record:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The Appellant called witnesses to establish her appeal, the witnesses contradicted each other on how she acquired ownership of the farmland. Also, the 2nd Respondent called his own witnesses who also contradicted each other on how he also acquired ownership of the farmland in issue. Both Appellant and 2nd Respondent are claiming ownership of farmland. Throughout the testimony of witnesses there was no evidence that the Appellant did not come home throughout the period she was away to Saudi Arabia even the question asked by the 1st Respondent that she came back 3 times and saw him cultivating the farmland and left without raising an issue, could not be answered satisfactorily by DWI. Neither did any of her siblings or neighbors to the farmland who saw the 1st Respondent exercising acts of ownership on the farmland for up to 14 years could call and alert the Appellant which would have enable her act timeously (even with the communication technology now in place) which has turned the world into a global village….
It is equally our humble view that the Appellant has failed to establish valid title to the land or that she entrusted or gave the

2nd Respondent the farmland for safe keeping which if had been proven to the satisfaction of this Court could have invalidated the sale… Accordingly, in the light of the foregoing we uphold the finding of the learned trial Upper Shari’s Court II Katsina, affirm it’s decision and dismiss the appeal.”

The attitude of the Courts is that without any clear evidence of errors in law or fact leading to or occasioning a miscarriage of justice, leading to a perverse decision, appellate Courts do not disturb the concurrent decision of two lower Courts. See Nitel Ltd v Okeke (2017) 9 NWLR Part 1571 Page 439 at 471 Para A-B per Peter-Odili JSC; Lewis v. United Bank for Africa Plc (2016) 6 NWLR Part 1508 Page 329 at 349 Para A-E per Kekere-Ekun JSC.

Part 826 Page 471 at 495 Para A-B per Nweze JSC; Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 384 Para C-E per M.D. Muhammad JSC.
It is also settled law that when an Appeal Court addresses questions of fact, it should accord high regard to the findings of the trial Court, since that Court saw the witnesses, was able to assess them and made findings on demeanour, which an Appeal Court cannot easily dislodge. The appellate Court, it has been held, should not substitute its own opinion of the evidence for that of the lower Court. See Awodi v. Ajagbe (2015) 3 NWLR Part 1447 Page 578 at 612 Para F-G; (2015) All FWLR Part 769 Page 1129 at 1155 Para A-C per Rhodes Vivour JSC.
Where, however, the trial Court made perverse findings or where on the face of the record, it is clear that justice had not been done in the case, the appellate Court can intervene.
A decision is said to be perverse where:
1. It is speculative and not based on a proper appraisal of the evidence; or any evidence; or
2. The Court took into account matters which it ought not to have taken into account; or
3. The Court has ignored the obvious.

There is a misapplication of the law to findings of fact properly made; or
5. There has been a miscarriage of justice occasioned by an error in procedural or substantive law – Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 337 at 375 Para B-C; (2015) All FWLR Part 793 Page 1824 at 1849-1850 Para H-A per Kekere-Ekun JSC; Uwah v. Akpabio (2014) 7 NWLR Part 1407 Page 472 at 488 Para F-G per M.D Muhammad JSC; Gbemisola v. Bolarinwa (2014) 9 NWLR Part 1411 Page 1 at 41-42 Para G-C per Ogunbiyi JSC.
In the instant case, neither the judgment of the trial Court or the Lower Court have been shown to be perverse. They both show a proper evaluation of the evidence, in holding the case of the 1st Respondent proved and that the Appellant had failed to establish valid title to the land. This Court thus has no reason to interfere with these findings.

I accordingly hold that neither the trial or the Lower Court were in error to have held that there was a valid sale transaction between the 1st Respondent and the 2nd Respondent and resolve the 1st issue for determination against the Appellant.

The 2nd issue for determination is:
Whether the learned trial Judges were not in error when they failed to apply correctly the principles of Hauzi in the circumstances of this case.

Arguing this issue, learned Counsel to the Appellant submitted that the learned Judges of the lower Court were in great error when they failed to apply the exceptions relating to the principles of Hauzi correctly, even though evidence abounded on the record that the Appellant gave the 2nd Respondent the farmland the subject of the dispute to keep in trust for her as she was in faraway Saudi Arabia. On her return, she demanded her farmland from the 2nd Respondent who had sold the same to the 1st Respondent.

Counsel also complained that the learned Judges of the lower Court did not advert their minds to the evidence of the Appellant’s witnesses i.e. DW1 – DW3 who informed the Court that the farmland was given to the 2nd Respondent to keep in trust for her until her return from Saudi Arabia which he later sold to the 1st Respondent and that they failed to consider the exception to the principles of Hauzi which includes trust. He distinguished the authority relied on by the lower

Court of Gidan Kada Vs Gidan Yawa (2013) SQLR PT 11 PAGE 25 alleging that in that case, the Plaintiff was present and watching the Defendant cultivating the land for a period of sixteen (16) years without the Plaintiff raising any claim while in the present case the Appellant was not in the country and when she came back she asserted her right timeously by asking the 2nd Respondent to return her farmland to her.

Arguing in the alternative to issue No. 1, the 1st Respondent’s Counsel submitted that even if it is held that there is no valid sale in favour of the 1st Respondent, the principle of Hauzi conferred ownership in him, having been in possession of the farmland for over 14 years, without any adverse claim by the Appellant or disturbance from anybody. He referred to the case of Abubakar & Anor. V. Bashir (2017) LPELR-43272 (CA).

Counsel alleged that throughout the proceeding at the trial Court, the Appellant did not claim that she was away to Saudi Arabia when the sale transaction took place and also did not claim that she was in Saudi Arabia throughout the period of 14 years when the Appellant was in possession of the farmland, without ever coming back.

Discountenancing the submission of the Appellant’s Counsel that the Appellant gave the farmland in dispute to the 2nd Respondent to keep for her in trust, he submitted that for the Appellant to benefit from the exception to this principle, she must claim and prove that the property was given to the person in possession to keep in trust for her, which is not the case in hand. The 1st Respondent was also not put into possession by her but acquired the same through a sale transaction. He relied on Hakimi Boyi V. Aisha Bakoshi (Supra) @ 99 Paras 280-295.
The Lower Court explained the principle of “Hauzi” as follows:
“First of all, we want to consider the principles relating to HAUZI as quoted by the party Counsel and how it relates to the issue at hand. In the case of MATI TELA & 1 OR VS UMAR KWARAGO SQLR JULY-SEPT 2013 Page 23 it was held that the meaning of HAUZI in Shari’a connotes circumstances where a person takes legal ownership of a thing or property from another through undisturbed possession for a period of 10 years minimum between parties who are unconnected by blood.”

On whether this principle was applicable to the case before them held:
“The evidence of PWI – PW5 all confirmed the sales of farmland to the 1st Respondent by the 2nd Respondent more than 14 years ago. PW1 testified that he grew up and saw that they witnessed when the transaction was sealed and money exchanged hands more than 14 years ago. There is no contention on this… it can safely be opined that the Appellant cannot claim to be unaware of the sale of the said farmland to the 1st Respondent until after 14 years he was in possession and was cultivating same every year in the full glare of the community and yet nobody raised an alarm or said anything until now.
In the absence of any credible and cogent reasons by the Appellant to explain her failure to challenge the 1st Respondent’s possession of the farmland for 14 years, this has effectively rendered her appeal in our humble opinion nugatory or defeated.”
In the case of Lawan Abubakar & Anor V. Bulama Bashir (2017) LPELR-43272 (CA), this Court, per Abiru JCA held:
“The concept of ownership by long possession and enjoyment of land relied upon by the Appellants in

their claim to the land in dispute is recognized under Islamic Law. It is called Hauzi – prescription. This doctrine postulates that where a person has been in peaceful enjoyment or possession of land without a challenge for ten years he thereby acquires a title by Hauzi (Prescription) against any person who claims to be true or original owner of such land during that period. In other words, where a party had been dealing with land in all manners as to show that he is the absolute owner for over a period of at least ten years, he will be deemed to be the owner of the land and the burden of proving that he is not the owner is on the other party.
This was explained by Adamu, JCA in Kwadage Vs Bakore (1996) 3 NWLR (Pt 437) 472 at 481 C-E thus:
“In Ihkamul-Ahkam … Hauzi (or long possession as described above) is regarded as analogous to evidence of a witness as it is a silent testimony in favour of the Possessor.”
The Sokoto Division of this Court in the case of Hantsi Mamman Shingi V. Abubakar Bandado (2018) LPELR-46549(CA) held, per Hussein Mukhtar JCA as follows:
“The main issue in this appeal is predicated upon whether the

appellant acquired the disputed land, which has been the subject of trust by application of the principle of hauzi (prescription). For a proper understanding of the 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.”
It is the undisputed evidence before the trial Court in the instant case, that the 1st Respondent

has been in undisturbed possession of the land for 14 years and some months. The evidence, as believed by the trial and the lower Courts, is that the Appellant’s possession was never challenged. They disbelieved the account of the Appellant that in all these 14 years, she was unaware of the 1st Respondent’s possession of the land. I see no reason to fault this conclusion by both the trial and the Lower Court, as under cross examination of her witnesses, they all admitted seeing the 1st Respondent cultivating the land over the years. It was also not disproved that the Appellant had witnessed these acts.
The Appellant has alleged that she is exempted from this principle because of the relationship of trust she had with the 2nd Respondent. However, as pointed out by the 1st Respondent’s Counsel, the relationship of trust must be between herself and the party relying on Hauzi.
Giving the exceptions to the application of this principle, per Wambai JCA, reading the lead judgment, in the case of Hantsi Mamman Shingi V. Abubakar Bandado Supra, held as follows:
“However, hauzi is defeated by certain factors and these include:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(1) blood relationship, fear of harm from these (sic) 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.”
See also the case of Hada v. Malumfashi (1993) NWLR Part 303 Page 1 per Wali JSC.
From the case of Hantsi Mamman Shingi V. Abubakar Bandado, supra to qualify under the 4th condition above, the person in possession must have been put there as a trustee. This is however not the case in this appeal, as the person allegedly put in possession by the Appellant is the 2nd Respondent and not the 1st Respondent. The Appellant can thus not take refuge under these exceptions.
The principle of Hauzi thus vests ownership of the property in the 1st Respondent, I hold. I consequently hold that the Lower Court and the Trial Court correctly applied the principles of Hauzi to this case.
I again resolve the 2nd issue for determination against the Appellant.

Having resolved both issues against the Appellant, this appeal

fails and is dismissed. The concurrent judgments of the Upper Sharia Court No. 2, Katsina delivered on 27/9/2016 and of the High Court of Katsina State sitting in its appellate jurisdiction, delivered on 12/12/2017, are accordingly affirmed. The Appellant shall pay costs of N50,000.00 to the 1st Respondent.

HUSSEIN MUKHTAR, J.C.A.: I have had the honour to preview the judgment just delivered by my learned brother, Oludotun Adefope-Okojie, JCA, I agree, for the reasons therein, that the appeal lacks merit and should be dismissed. I therefore dismiss the appeal and subscribe to the consequential orders made therein.

SAIDU TANKO HUSSAINI, J.C.A.: My Lord had availed me with the draft copy of the lead judgment just delivered. I am in total agreement with the reasoning and conclusion contained therein.

The appellant had slept over her rights, (if at all she had any) when she stood by and for a period of fourteen years or so, did nothing but watch the 1st respondent cultivate the land sold to him by the 2nd Respondent. If indeed ownership of the property in dispute was with the appellant, she needed to take steps to challenge the 1st respondent and

retrieve the land, at the earliest opportunity but failed. She got caught up by the principle of Hauzi which the trial Upper Sharia Court rightly applied in favour of the 1st respondent in the judgment delivered by it and affirmed at the Court below.
Concurrent findings of two lower Courts will hardly be set aside on appeal unless a clear case of perversity was established. The appellant has not made any such case in the appeal before us hence same, that is, Appeal No. CA/K/610/2018 merit an Order of dismissal. The Judgment of the High Court of Justice (Sitting on appeal) delivered on 12th December, 2017 is affirmed. I abide by the Order as to cost contained in the lead judgment.

Appearances:

ABDUL ALIYU ESQ. For Appellant(s)

M. SALIHU, ESQ. holding brief of M. I. ZAKARIYA, ESQ. – for 1st Respondent.
2nd Respondent unrepresented For Respondent(s)