MUKTAR v. MUSA & ORS (2022)

MUKTAR v. MUSA & ORS

(2022)LCN/17156(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, July 05, 2022

CA/ABJ/S/17/2022

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

HAFIZ MUKTAR APPELANT(S)

And

1. AMINA MUSA 2. RUKAYYA MUSA 3. HADIZA MUSA 4. UMAR MUSA 5. USMAN MUSA 6. FALMATA MUSA 7. FATIME MUSA 8. ZAINAB MUSA 9. ABUBAKAR MUSA RESPONDENT(S)

RATIO

THE RULE OF SHARIA AS REGARDS GIFTS

It is evident that in the appeal at hand, the deceased was not ready to divest herself of dominion and control. This made her gift to be invalid as the most important condition in such a gift is delivery of possession. Possession which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest herself completely of all ownership and dominion over the subject matter of the gift. See BAKSH Vs. BIBI, A.I.R. 15 CAL. 684; BASIT Vs. MIAN (1973) A.I.R. DELHI, 280 at 283.
It is a fundamental rule of Sharia as regards gifts that the donor should divest herself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. A gift with a reservation of possession by the donor during his/her life was held to be void. See KHAN Vs. KHAN (1927) A.I.R. P.C. 97 at Page 98. PER DANJUMA, J.C.A.

MOHAMMED DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sharia Court of Appeal, Federal Capital Territory, Abuja based on the judgment of Upper Area Court Garki sitting at Kado, Abuja. Prior to the appeal, the Appellant filed an action to confirm a gift of a house lying and situated at No.: 1, 44 Crescent, Citec Vilars Gwarinpa, Abuja, whereas the Upper Area Court dismissed the Appellant’s claim on appeal to the Sharia Court of Appeal, the Court confirmed the judgment of the Upper Area Court. Hence, the Appellant filed this appeal to this Court.

BRIEF FACTS OF THE CASE
The Appellant in the trial Court as Plaintiff issued a civil summons against the heirs of late Hajiya Binta Musa, claiming that the only house owned by late Hajiya Binta Musa during her lifetime was gifted to the Plaintiff.

The heirs of late Hajiya Binta Musa are ten (10) in number, all are brothers and sisters and her parents died long ago. The brothers and sisters are; AISHA MUSA, AMINA MUSA, RAKIYYA MUSA, HADIZA MUSA, UMAR MUSA, USMAN MUSA, FALMATA MUSA, FATIME MUSA, ZAINAB MUSA AND ABUBAKAR MUSA. The house in question is situated at No.: 1 Road 44 Crescent Citec Villars, Gwarimpa, Abuja.

The trial Court in its judgment delivered on August 9th, 2021 dismissed the claim of the Appellant and he appealed at the Sharia Court of Appeal, Abuja. The Sharia Court of Appeal also in its judgment delivered on December 9th, 2021, dismissed the appeal. Now, the Appellant has appealed to this Court.

ISSUES FOR DETERMINATION
The Appellant’s Counsel Mr. Ahmed Mohammed Jega Esq. filed the Appellant’s Brief on 16th February, 2022 in the Appellant’s Brief of Argument, the following issues were raised for determination of this appeal: –
i. Whether the failure of the 1st, 2nd 3rd and 9th Respondent to deny the Appellant’s claim amounted to an admission of the Appellant’s claim based on the Principle of Islamic Law”. Distilled from Ground 1 of the Appellant Notice of Appeal.
ii. Whether based on the Principle of Islamic Law, the testimony of Appellant 2nd witness (PW2 Hamidu Musa) is admissible. Distilled from Ground 2 of the Appellant Notice of Appeal.
iii. Whether based on the Principle of Islamic Law Exhibit 1 and 2 Bank Tellers evidencing the payment of rent by the deceased Hajiya Binta Musa Abubakar to the Appellant’s Account Number: 3061000025 domiciled with M and M Micro Finance Ltd, Abuja and not being objected to or impeached by the Respondents, the Exhibits were admissible. Distilled from Ground 3 of the Notice of Appeal.
iv. Whether the testimony given by Appellant 2nd witness (PW2) Hamidu Musa corresponds with the Appellant’s claim of the payment of rent to him through his Account Number: 3061000025 domiciled with M and M Micro Finance Bank Ltd, Abuja by late Hajiya Binta Musa. Distilled from Ground 4 of the Notice of Appeal.
v. Whether based on the Principles of Islamic Law proof of one-year possession of a gifted property by donee is a complete possession of a gift. Distilled from Ground 5 of the Notice of Appeal.

On issue one, learned Counsel to the Appellant Mr. Ahmed Mohammed Jega Esq. submits for the Appellant that failure of the 1st, 2nd 3rd and 9th Respondents to deny the Appellant’s claim amounted to an admission of the Appellant’s claim. That by the proof of the existence of contractual agreement (KHULDA) based on the testimony of Appellant’s 3rd witness Fatima Abba Kaka which the trial Court upheld and accepted as credible the trial Court ought to have entered judgment against the 1st, 2nd, 3rd, and 9th Respondents and offered Oath of Rebuttal to the 4th, 5th 6th, 7th and 8th Respondents or if the trial Court opined that non-denial of the Appellant’s claim by 1st, 2nd, 3rd, 9th Respondents is not amounted to an admission of the Appellant’s claim, all the Respondents should be offered with Oath of Rebuttal base on the proof of the existence of contractual agreement (KHULDA) which under Islamic Law can be proved even by the testimony of one female witness. He cited of books KITABUL AHKAM LIL KADI IBN DABUS publication of Darul Irshadul Hadisa Page 246; MAWAHIBUL HALAQ VOL. 2 Page 311.

Learned Counsel for the Appellant urged this Court to hold that the non-denial of the 1st, 2nd, 3rd and 9th Respondents to the Appellant claim amounted to admission of the Appellant’s claim or order all the Respondents to take the Oath of Rebuttal base on the proof of the existence of contractual agreement (KHULDA) base on the evidence of Appellant’s 3rd witness, Fatima Abba Kaka. He calls in aid the book of SAMARU DANI short commentary of RISALATU ABI ZAID QIRAWANI Page 604.

That if however, the Respondents declined to take Oath of rebuttal, this Court should enter judgment in favour of Appellant and order that if the Appellant attains the age of puberty, should take oath of affirmation, since the Appellant is presently a minor. He referenced the book of KWANINUL FIQHIYYA LI IBN JUZAYYI, Darul Fikr Publication Page 259.
The Appellant’s Counsel urged the Court to so hold and resolve the issue in favour of the Appellant.

On issue two, Learned Counsel to the Appellant argued that the testimony of the Appellant’s 2nd witness (PW2 Hamisu Musa) is admissible. He argued that all the reasons stated by the learned trial Judge on his impeachment of the Appellant’s 2nd witness are based on his personal opinion and not founded on the Principle of Islamic Law. He stated that contrary to the trial judge’s allegation that PW2 stated the Plaintiff’s mother is “his boss”, there is nowhere in the proceedings where the PW2 made such statement. He submits that PW2 Hamisu Musa had only testified that Appellant’s mother is his director. That rather PW2 Hamidu Musa said he is working with the deceased at M and M Micro Finance Bank since 2010, and he is also appointed as Managing Director by the board of directors and also stated that board of directors are six in number. Learned Counsel stated that there is no reason for the trial Judge to turn the testimony of the PW2 Hamidu Musa as that of the evidence of a servant against his master because PW2 Hamidu Musa is not under the direct care of the Plaintiff’s mother and she is not the one taking care of his responsibilities. Learned Counsel cited the book of MAWAHIBUL JALIL commentary of MUKHTASARUL KALIL VOL. 6, to submit that it is only when a witness is under the direct care of a person who he testifies in his favour that is rejected under Islamic Law, but if the reverse is the case the evidence of such witness is acceptable.

On issue three, learned Counsel to the Appellant submits that exhibits 1 and 2 Bank Tellers presented by the Appellant evidencing the payment of rent by the deceased Hajiya Binta Musa Abubakar to the Appellant’s Account No.: 3061000025 domiciled with M and M Micro Finance Bank for the period of 2017-2018 and 2018-2019 which was not objected to or impeached by the Respondents, amounts to admission of evidence. He stated that from the Record, when the two Tellers were tendered in evidence by the Appellant’s Counsel the Respondents raised no objection and this amount to admission going by the Principle of Islamic Law. It was submitted that the learned trial Judge in rejecting the Tellers said the tellers were not signed by the deceased, and this amounts to making a case for the Respondents which goes against the Principle of Sharia Law. He placed reliance on the book of TABSIRATUL HUKKAM VOL. 1 Page 19.

On issue four, learned Counsel submits for the Appellant that the 2nd Appellant witness, Hamidu Musa, testified for the payment of rent by deceased Hajiya Binta Musa to the Appellant’s Account. That under Islamic Law, testimony such as this is acceptable since the witness is saying directly what he heard from the mouth of the maker. He placed reliance on the book of IKHAMUL AHKAM short commentary of TUHFATUL HUKKAM page 30.

The Appellant Counsel stated that the reason canvased by the trial Judge in his judgment that the Appellant’s Counsel did not call any witness or written agreement in proof of the payment of rent does not hold water as that is his own personal opinion.

On issue five, learned Counsel submits for the Appellant that under Islamic Law proof of one-year possession by the donee of a gifted property is a complete possession of the gifted property. He argued that the Appellant’s counsel in his final address quoted an authority to the effect which has not been countered or abrogated by any authority or challenged by the Respondents or the trial Judge. He submits that under Islamic Law, evidence of payment of rent by the Donor of a house to the Donee of the said house is a clear indication of possession by the done. Learned Counsel call in aid of the book of MIIYARUL MU’ARABU WAL JAMIUL MAGARABU VOL. 6 Page 490 Publication of Darul Kutubul Alamiyya. He stated that possession of a gift for a year or more is enough evidence for the possession of the particular gift. That the trial Judge’s finding that the Appellant’s Counsel failed to show what the deceased donor was doing in the house she had gifted out since 2006 is the learned Judge’s personal opinion as this is not the position of Islamic Law. That the only requirement stipulated under Sharia Law with regards to the possession of a gifted property is for the donee to take possession of the gifted property one year before the death of the donor that in instant case the Appellant as the donee of the house in dispute has taken possession of the house based on the evidence of payment of two years rent to him as seen in his account domiciled with M and M Micro Finance Bank Ltd, Abuja by the deceased donor, Hajiya Binta Musa Abubakar.

The Appellant urged the Court to allow this appeal and set aside the decisions of the lower Courts and confirm the gift of the house in question to the Appellant.

Mr. Usman Garba Esq. Counsel to the 1st, 2nd, 3rd and 9th Respondents filed their Respondents’ Brief of Argument on 16th of May, 2022 but was deemed properly filed on 10th of May, 2022. In the said Brief, the five issues formulated by the Appellant for the determination of this appeal was adopted by them. That is: –
a. Whether the failure of the 1st, 2nd, 3rd and 9th Respondent to deny the Appellant’s claim amounted to an admission of the Appellant’s claim based on the principle of Islamic Law.
b. Whether based on the Principle of Islamic Law, the testimony of Appellant’s 2nd witness (PW2 Hamidu Musa) is admissible.
c. Whether based on the Principle of Islamic Law Exhibits 1 and 2 Bank Tellers evidencing the payment of rent by the deceased Hajiya Binta Musa Abubakar to the Appellant Account Number 3061000025 domicile with M and M Micro Finance Bank Ltd, Abuja and not being objected to or impeached by the Respondents, exhibits were admissible.
d. Whether the testimony given by the Appellant 2nd witness (PW2) Hamidu Musa correspond with the Appellant claim of payment of rent to him through his Account Number 3061000025 domiciled with M and M Micro Finance Bank Ltd, Abuja by late Hajiya Binta Musa.
e. Whether based on the principle of Islamic Law, proof of one-year possession of a gifted property by donee is a complete possession of a gift.

On issue one, Learned Counsel to the 1st, 2nd, 3rd and 9th Respondents Mr. Usman Garba Esq. contended that it is clear misconception of the entire proceeding for the Appellant to allude that the 1st, 2nd, 3rd and 9th Respondents did not deny the Appellant’s claim at the trial Court. He stated that the said Respondents were at the trial Court. He stated that the said Respondents were represented by counsel and denied the Appellant’s claim and this is consented at page 49 of the Record of Appeal. That the argument of the Appellant that the said Respondents did not file their denial in writing is not a mandatory requirement at the trial Area Court. He argued that even if it is assumed that the 1st, 2nd, 3rd and 9th Respondents did not deny the Appellant’s claim which claim was denied by other Respondents, it would effectively ensure the Appellant’s claim fail. That either way, the said gift was challenged and the Appellant failed to prove same.

On issue two, Learned Counsel Mr. Usman Garba Esq. submits that the testimony of Hamisu Musa (PW2) is inadmissible same having contradicted the evidence adduced by PW1 Ali Haruna. That PW1 Ali Haruna in his testimony stated that the deceased (Hajiya Binta Musa Abubakar) bought the house, the subject matter of this appeal to the Appellant while PW2 in his testimony stated that the house was gifted to the Appellant. That it is settled Principle of Islamic Law that where two pieces of evidence contradict each other, the Court cannot accept them.

On issue three and four, Learned Counsel Mr. Garba Esq. submits for the 1st, 2nd, 3rd and 9th Respondents that payment of rent is not one of the essential elements of gift under Islamic Law. That it is a fundamental rule of Sharia as regards gift that the donor should divest himself completely of all ownership and dominion over the subject matter of the gift. That it is essential to the validity of a gift that there should be a delivery of such possession as a gift with a reservation of possession by the donor during his life time was held to be void. Learned Counsel referenced the case of ADAMU & 3 ORS vs. NDA, SQLR (2014) Part 1 Volume 2 Page 101.

On issue five, Learned Counsel posited that the deceased Hajiya Binta Musa Abubakar never parted with the possession of the litigated property and remained in occupation till her demise. He submits that the two purported Bank Tellers marked Exhibit 1 and 2 are nothing more than pieces of paper as the Appellant failed to establish the content therein and they ought to be discarded.

Mr. Usman Garba Esq. urged this Court to dismiss this appeal for being unmeritorious and uphold the judgment of the Sharia Court of Appeal; Abuja.

The 4th-8th Respondents filed their Respondents’ Brief of Argument on 14th March, 2022, through their Counsel Mr. M. B. Usman, Esq. in the Brief, the following issues were raised by the 4th-8th Respondent for the determination of this appeal:
1. Whether evidence adduced by the Appellant before the trial is sufficient to prove the existence of a valid gift under Islamic Law which will warrant the Sharia Court of Appeal to upturn the judgment of the trial Court. (formulated from Grounds 2, 3 and 4 of the Grounds of Appeal).
2. Whether the evidence adduced by the Appellant before the trial Court has proved a possession under the principles of gift under Islamic Law. (formulated from Ground 5 of the Grounds of Appeal).

On issue one, learned Counsel for the 4th-8th Respondents, contended that the Appellants in this appeal is trying to rely on the fact that the failure of the 1st, 2nd, 3rd and 9th Respondents to deny his claim amounts to admission but this a strange procedure. It was stated that assuming but not conceding the said Respondents did not come out clearly to deny the claim of the Appellant before the trial Court, it will not give them leverage to gain judgment in his favour.

Learned Counsel Mr. M. B. Usman Esq. submits that PW1 Ali Haruna testified that the house in dispute was bought for and in the name of the Appellant but the letter of allocation was dated March 19th, 2003 (Page 74 of the Record of Appeal) and the Appellant was born in March 23rd, 2005. That false testimony such as this is the reason why the trial Court rejects the letter of allocation and testimony of PW1. He stated that the letter of allocation which was tendered by the Appellant before the trial Court has no bearing at all to the case of the Appellant. That the said letter of allocation does not bear the name of the purported donor, it does not bear the name of the purported donee and there is no document or evidence before the trial Court or anywhere linking the case of the Appellant and the said document.

With respect to the two Deposit Tellers (Exhibits 1 and 2) Learned Counsel submits that they prove nothing. He argued that it would be difficult to comprehend that the said Exhibits are filed by the deceased and that it was for the payment of rent and that it was the rent of the Appellant and it was in respect of the house owned by the deceased and that she was paying the rent because she has given her only house as a gift.

On the contention of Learned Counsel to the Appellant that since the Respondents did not object to the tendering and admissibility of Exhibits 1 and 2, it means they admit same, Learned Counsel Mr. Usman Esq. stated that it is a strange way of thinking, as Respondents actually object to its admissibility. It was stated that the two exhibits are of no evidential value. That although the Exhibits are purportedly filled and paid by the deceased as rent there is no proof to back up the claim.

As for PW2, Learned Counsel Mr. Usman argued that what he said before the trial Court does not prove anything in favour of the Appellant. That even then he was impeached on the ground of being a servant of the mother of the Appellant. And as for PW3, it was argued that even the acceptance of her testimony by the learned trial Judge failed to help the Appellant because her testimony failed to prove the ingredient of a valid gift.
Mr. Usman Esq. urged the Court to so hold and resolve issue one in favour of the Appellant.

On issue two, Learned Counsel Mr. M. B. Usman Esq. submits that a gift under Islamic Law has what is called Pillars or ingredients and requirements which must be fulfilled before it can be considered as a valid gift. He submits that the pillars as enunciated by jurists are: The Donor, the Donee, the property which is the subject matter and the offer and acceptance. That (a), on the Donor, the jurists are unanimous that, whoever possess the subject matter of a gift and is healthy and is not under any restriction can be competent donor. That (b), on the Donee, the Donor can give his property to anyone he so wishes, with minor disagreement amongst the jurists. That (c), the Gift, which refers to the property to be gifted out which must be lawful property that a Muslim is allowed to deal with by giving out or possessing. That (d), the offer and acceptance must be present for the gift to exist. He placed reliance on the Author of Akhafi Fi Fiqhi AhIiIMadinati Almaliki at P. 528. Learned Counsel Mr. Usman argued that the Appellant did not call any witness before the trial Court who testified to establish that these requirements exists.

Learned Counsel Mr. Usman posited that the Appellant called three witnesses before the trial Court and tendered three exhibits. He stated that the Respondents adopts their earlier submission in respect of the testimony of PW1 and add that, the said PW1 testified to the effect that (a) the deceased bought the house in the name of her grandson Hafiz, (b) that she will stay in the house and pay rent, (c) that he cannot confirm whether she has started paying rent (page 13 of the Record of Appeal). Learned Counsel Mr. Usma argued that this testimony of PW1 has no proof and looks more like a tale. That PW1 complicated matters further by saying the house in question was bought in the name of the Appellant but the document presented as Letter of Allocation does not bear any name of either the Appellant or the deceased. That the law requires the donor to state that he or she has donated the property in question to the Donee and that there are witnesses present to witness the offer and acceptance but that is not the case here.

With respect to PW2 Hamidu Musa, learned Counsel submits that he had stated that he works with Hajiya Binta the deceased but now he works under Hajiya Nafisa, as his director, the mother of Hafiz at whose instance he comes to Court to testify. That as such, he cannot validly testify. He cited the book of IHKAMUL AKHKAM ALA TUHFATIL HUKKA P. 29.

With respect to PW3, Fatima Abba Kaka who testified that the house in dispute belonged to Hajiya Binta, Learned Counsel Mr. Usman argued that her testimony does not assist the Court to understand any gift with its ingredients as stipulated by law.

Further, it was contended that even when a valid gift has been purportedly created, the continuous stay of the Donor up to the time of her death without vacating the house had invalidated the gift. That in Islamic Law, delivery of the property by the donor and the donee taking possession is always emphasized by all the jurists. Mr. Usman submits that this is the position taken by the author of Durrarul-Mukhtar who say “Delivery of Seisin is required in gift just as in case of Mortgage and Sadaka because it is a possession which renders the contract complete”.

Finally, Learned Counsel Mr. Usman submits that in this appeal, the Appellant formulate five issues for determination but failed to touch the crux of the matter which the two lower Courts based their judgment on, which is that the ingredients of a gift have not been satisfied in this case (Pages 358 to 360 of the Record of Appeal).

Mr. Usman Counsel to the 4 to 8 Respondents urged this Court to dismiss this appeal with a substantial cost against the Appellant.

RESOLUTION OF ISSUES
Having gone through the Record of Appeal and also perused the submissions of the parties, I deem it fit to adopt the issues formulated by the Appellant in his Brief of Argument for a just resolution of this appeal. Again, I reproduce them: –
i. Whether the failure of the 1st, 2nd, 3rd and 9th Respondent to deny the Appellant claim amounted to an admission of the Appellant’s claim base on the Principle of Islamic Law”.
ii. Whether based on the Principle of Islamic Law, the testimony of the Appellant 2nd witness (PW2 Hamidu Musa) is admissible.
iii. Whether based on the Principle of Islamic Law Exhibit 1 and 2 Bank Tellers evidencing the payment of rent by the deceased Hajiya Binta Musa Abubakar to the Appellant Account Number: 3061000025 domiciled with M and M Micro Finance Ltd. Abuja and not being objected to or impeached by the respondents, the Exhibits were admissible.
iv. Whether the testimony given by Appellant 2nd witness (PW2) Hamidu Musa corresponds with the Appellant’s claim of the payment of rent to him through his Account Number: 3061000025 domiciled with M and M Micro Finance Bank Ltd, Abuja by late Hajiya Binta Musa.
v. Whether based on the Principles of Islamic Law proof of one-year possession of a gifted property by donee is a complete possession of a gift.

ISSUE ONE:
“Whether the failure of the 1st, 2nd, 3rd and 9th Respondent to deny the Appellant’s claim amounted to an admission of the Appellant claim base on the Principle of Islamic Law”.
After a perusal of the Record and careful analysis of same, I saw no indication of non-denial of the Appellant’s claim by the 1st, 2nd, 3rd and 9th Respondents. Or perhaps the learned Counsel to the Appellant means failure to file their denial in writing is an indication that the said Respondents admit the claim. But then filing denial in writing is not mandatory at the trial Area Court. And as Learned Counsel to the 1st, 2nd, 3rd and 9th Respondents had rightly pointed out it would make no difference anyway if the 1st, 2nd, 3rd and 9th Respondents admit to the claim but same claim was denied by the 4th, 5th, 6th, 7th and 8th Respondents in the suit. The Appellant cannot succeed on this ground.

The Learned Counsel to the Appellant relies on the evidence of PW3 Fatima Abba Kaka who testified before the trial Court that: –
“The deceased is my friend for long, the house in contention is her house, on several occasions she told me, she bought the house and she has given it to her grandson that is matter and there is period she told me she will be paying him rent, about the issue of the house that is what I know”
(See page 18 of the Record of Appeal).

One problem with this testimony is that it is too scant in details and failed to prove satisfactorily the format of a valid gift. And what is the format of a valid gift? A gift in Islamic Law, may take the following format, that is to say: –
a. By a DECLARATION made orally or in writing of the gift by the donor or his agent;
b. By the ACCEPTANCE of the gift expressly or implied by or on behalf of the donee, except in the case of a gift of a debt to the debtor or by a guardian to his ward; and

c. By the DELIVERY OF POSSESSION of the subject matter of the gift to the donee.

The testimony of PW3 does not in any way assist this Court to understand the real picture pertaining to the subject of dispute. In order to establish that valid gift did exist, PW3 ought to show that she was present when the donor made an offer to the Donee and the Donee accepted it or at least someone on behalf of the Donee accepted it on his behalf. See the book of SIRAJUSSALIKI SHARHU ASHALIL MASALIK at P. 189 of Vol. 11, where the author states that: –
“That to contract a valid gift there must be an express offer and acceptance”.
In the case of Maikano Vs. Tsoho 1 Sh. L. R. N. P. 164 at 166, this Court held that: –
“The idea of a gift under Islamic Law is the transfer of a corpus of a thing to the donee. Thus, in order to be valid, the gift must satisfy the following conditions: –
a. A declaration of the gift by the donor
b. Acceptance of the subject matter of the gift by the donee himself or by his agent;
c. Possession should be delivered by the donor to the donee”.

Neither PW3 nor any of the Appellant’s witnesses testified satisfactorily that the conditions of a valid gift are met.

I hold that the 1st, 2nd, 3rd and 9th Respondents’ failure to deny in writing the claim of the Appellant does not amount to an admission of the Appellant’s claim by the Respondents.

ISSUE TWO:
Whether based on the Principle of Islamic Law, the testimony of the Appellant 2nd witness (PW2 Hamidu Musa) is admissible.
On this issue, learned Counsel to the Appellant argued that the reasons stated by the learned trial Judge on which he relied and impeached the Appellant’s 2nd witness were not founded on the Principle of Islamic Law and are strictly based on the personal opinion of the learned trial Judge.

From the records, there are contradictions between testimonies of PW1 (Ali Haruna) and PW2 (Hamisu Musa), rendering them inadmissible. PW1 (Ali Haruna) in his testimony stated that the deceased (Hajiya Binta Musa Abubakar) bought the house, the subject matter of this appeal for the Appellant, while PW2 (Hamisu Musa) in his testimony stated that the house in question was gifted to the Appellant (see pages 15 and 19 of the Record of Appeal). It is a settled Principle of Islamic Law that where two pieces of evidence contradict each other, the Judge cannot choose which of the two to accept but reject them both.

Further, PW2 stated that he used to work with the deceased but now he works under Hajiya Nafisa, as his director, the mother of the Appellant The PW2, having testified that the mother of the Appellant is his director (see page 21 of the Record of Appeal), he is disqualified as a witness of Appellant under Islamic Law. This is based on the ground of bias because going by the relationship of PW2 and the Appellant’s mother, the PW2 becomes an interested party and his testimony is not allowed in Islamic Law. This issue is resolved against the Appellant.

ISSUE THREE:
Whether based on the principle of Islamic Law Exhibit 1 and 2 Bank Tellers evidencing the payment of rent by the deceased Hajiya Binta Musa Abubakar to the Appellant’s Account Number: 3061000025 domiciled with M and M Micro Finance Ltd, Abuja and not being objected to or impeached by the Respondents, the Exhibits were admissible.
Learned Counsel to the Appellant’s submission here is that Exhibits 1 and 2, the Bank Tellers purported to evidence the payment of rent to the Appellant by the deceased donor was tendered at the trial Court and since the Respondents raised no objection, they admitted the evidence. However, this is my observation: When Counsels were asked as to any objection of admitting the said exhibits, one of the Counsels answered “we will address the Court on that’ and the other simply said “no objection” (see page 19 of the Record of Appeal). In my opinion, this does not amount to admission of the correctness of Exhibits 1 and 2. There are many questions concerning these exhibits that had not been answered. How did the Appellant get hold of the Exhibits that are supposed to be in the custody of the deceased? How feasible is it that a donor gifted her only house to a donee and turned herself into a tenant of the same property, demanding for receipts of her payment? Who negotiated the rent payable to the donee? The last question is of utmost importance because if the donor (deceased Hajiya Binta Musa Abubakar) made any input in negotiation of rent payable, the gift is void. Also, the gift is voided if she had even indirect influence in negotiation on rent payable to the donee. As long as the done is yet to take full possession and exercise full dominion over the house, subject matter of appeal, he remains in weak a position to determine the rent payable independent of the donor. It follows therefore the transfer of property purportedly evidenced by Exhibits 1 and 2 is void under Islamic Law.

It is evident that in the appeal at hand, the deceased was not ready to divest herself of dominion and control. This made her gift to be invalid as the most important condition in such a gift is delivery of possession. Possession which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest herself completely of all ownership and dominion over the subject matter of the gift. See BAKSH Vs. BIBI, A.I.R. 15 CAL. 684; BASIT Vs. MIAN (1973) A.I.R. DELHI, 280 at 283.
It is a fundamental rule of Sharia as regards gifts that the donor should divest herself completely of all ownership and dominion over the subject of the gift. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. A gift with a reservation of possession by the donor during his/her life was held to be void. See KHAN Vs. KHAN (1927) A.I.R. P.C. 97 at Page 98.
In the instant appeal, the deceased donor was alleged to have gifted the property in question to the Donee but decided to stay back as tenant and so the Donee can only take full possession after the demise of the Donor. The consequence of this is that the Donor, after the purported gift to the Donee still exercise some form of control over the house in dispute. This does not conform with the Principle of Islamic Law and the purported gift is void.

ISSUE FOUR:
Whether the testimony given by Appellant 2nd witness (PW2) Hamidu Musa correspond with the Appellant claim of the payment of rent to him through his Account Number: 3061000025 domiciled with M and M Micro Finance Bank Ltd, Abuja by late Hajiya Binta Musa.
We had earlier reached the conclusion that the testimony of PW2 (Hamisu Musa) is not acceptable under Islamic Law because he has his own interests to protect. The witness testified that he used to work with the deceased donor and now works under Hajiya Nafisa, the mother of the Appellant. Between Hajiya Nafisa and PW2 is a convergence of interest which would inevitably lead to bias. There exists a possibility that the testimony of PW2 would be influenced by the mother of the Appellant (his boss) and therefore his testimony would almost amount to his boss’s testimony. The testimony of Hajiya Nafisa, the Appellant’s biological mother, is under Islamic Law, absolutely prohibited. See TUHFATUL HUKKAMI, Paragraphs 115 to 120; AL KAFI (ND) IHKAMUL AHKAMI ALATUHFATIL HUKKAMI, DAR AL-FIKR PUBLISHERS, Pages 29-30.

We had reached the conclusion earlier that Exhibits 1 and 2, the Bank Teller purported to be the evidence of payment of rent by the Donor to Donee are of no judicial value having failed validity test. In any case, Bank Tellers or receipt of rent do not in themselves constitute evidence of full possession and dominion over gifted property under Islamic Law. I am satisfied that in reaching his decision, the learned trial Judge relied on what he learnt from the evidence before him.

In the book of IKHAMUL AHKAMI, Pages 13-14, it is stated: –
“The jurists are in concurrences that a Judge should base his judgment upon what he learnt from the witnesses. (Imam) Malik has indeed denounced strongly the practice of giving a decision without (valid evidence) from witnesses”.
This issue is resolved against the Appellant and in favour of the Respondents.

ISSUE FIVE:
Whether based on the Principles of Islamic Law proof of one-year possession of a gifted property by donee is a complete possession of a gift.
Here, the learned Counsel to the Appellant argued that the Appellant, the purported Donee of the house, the subject matter of dispute took full possession of the said house more than a year before the demise of the deceased Hajiya Binta Musa Abubakar and as such had complete possession of the said house in accordance with the Principles of Islamic Law.

It seems to me that the Appellant placed too much reliance on the issue that the Donor, the deceased Hajiya Binta Musa Abubakar, has stayed in the house in dispute as a tenant. The Donor was alleged to have been paying rent of the house to the Appellant after gifting it out to him. Purported Bank Tellers were produced to prove such rent and tenancy as alleged in Exhibits 1 and 2. But even assuming that these exhibits are conclusive evidence of rent between the deceased Donor and the Appellant, it remains an invalid gift in the eyes of Islamic Law so long as the Donor retains some form of control over the property while alive. See KHAN Vs. KHAN (Supra); BASIT vs. MIAN (1973) A.I.R. DELHI, 280 at 283.

Late Hajiya Binta Musa maintains some sort of influence in the subject matter of dispute till she died. The Exhibits, the Bank Tellers purportedly evidencing the payment of rent remains worthless pieces of paper as the Appellant could not establish their content. The doctrine of “she told me…”, “I heard her say…”, etc. is not founded under the principles of Islamic Law. In KAKALE & ANOR vs. NOMA (2021) LPELR-55093 (CA), it was stated that one of the conditions for the admissibility of the testimony of a witness under Islamic Law is that: –
“The testimony must be cogent, credible and unimpeachable”.
Evidence of witness is not a story-telling adventure. See the book of TAUDIHUL AHKAM MIN BULUGIL MARAM VOL. VII P. 205. It was reported in the Hadith that the Holy Prophet (PBUH) asked a man “can you see the sun?” the man replied “Yes”, so the Holy Prophet (PBUH) said “on like it (the clarity of it) give evidence or leave it (if it is not as clear as the sun to you”.

From the Principle of Islamic Law, it would be wrong for the trial Judge to award the house in question to the Appellant. The Appellant (Donee) failed to discharge the burden of proof that he assumed full possession/ownership and dominion over the said before the demise of the deceased donor.

It was stated in THAMARU AL-DANEE: –
“Where the donor dies before (the subject matter of the gift) is taken possession of, then it (now) becomes inheritable estate by the heirs and (the gift) is void for whom it is made except where (made) in a deadly sickness which is executable within 1/3 limit”.

The Appellant had argued strenuously that he tendered enough evidence to establish ownership of the property in dispute, but there is no corresponding valid evidence of delivery of possession (hauzi) which is an essential element of a valid gift. The question as to whether the Donor was paying rent to the Donee before her death was nowhere convincingly substantiated. The lower Court was therefore right in affirming the judgment of the trial Court. Life experience is that when a bird is alive, it eats ants. When the bird is dead, the ants eats the bird. One tree can be made into one million matchsticks, but only one matchstick is needed to burn a million trees. Circumstance can change at any time. Do not devalue or hurt anybody in this life, you may be powerful today but time is more powerful than you.

All the issues raised by the Appellant for the determination of this appeal are hereby resolved against the Appellant and in favour of the Respondents. This appeal is unmeritorious and is hereby dismissed.

The judgment of Sharia Court of Appeal, FCT Abuja delivered on 9th December, 2021, by Honourable Kadis Abdullahi Saidu Usman, Muhammad S. Abubakar and Lawal S. Abdullahi in Appeal No.: SCA/FCT/CV/63/2020 is hereby affirmed.

SAIDU TANKO HUSSAINI, J.C.A.: My lord in the leading judgment prepared by him has availed me with the draft copy and after pursuing same, I cannot but agree with him, his reasoning and conclusion in respect of each and every issue addressed by my lord. The appeal indeed lacks merit and same is dismissed.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother M. DANJUMA, JCA. I am in agreement with the reasoning and conclusion reached by him in this appeal.

For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.