YOLE v. TASHA
(2020)LCN/15824(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, July 16, 2020
CA/S/91S/2018
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
ABUBAKAR SHAYAU YOLE APPELANT(S)
And
SHEHU HAKIMI TASHA RESPONDENT(S)
RATIO:
EFFECT OF THE CONTENT OF PROCEEDINGS ON THE PARTIES
It is well settled that the contents of record of proceedings are binding both on the Court and the parties. See CHIEF FUBARA & ORS VS CHEF MINIMAH & ORS (SUPRA) and SAPO VS ANIBIRE (SUPRA). ABUBAKAR MAHMUD TALBA, J.C.A.
PRINCIPLE OF LAW WHEN AN ISSUE HAS BEEN RAISED AND DETERMINED BETWEEN PARTIES IN A SUIT
Once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See I.G.P VS UBAH (2015) 11 NWLR (PT. 1471) 405, LADEGHA VS DUROSIMI (1978)3 SC 91, BAMISHEBI VS FALEYE (1987) 2 NWLR (PT. 54) 51, ADIGUN VS GOV. OSUN STATE (1995) 3 NWLR (PT. 385) 513. ABUBAKAR MAHMUD TALBA, J.C.A.
Effect of the evidence act on the sharia court
In matters of practice and procedure, Sharia Court are not strictly bound by the provisions of the evidence Act but it’s a guide to the Sharia Courts. In the case of ZAIDAN VS MOHSSEN (1973) 11 SC 1 @ 21, the apex Court held thus;
“Great latitude must be given to and a broad interpretation placed upon native (nay sharia) Court cases so that the earlier proceedings, the evidence of the parties and the judgment must be examined in order to determine what the native or customary. (nay sharia) Court case is all about. (AJAYI VS AINA 16 NLR PAGE 67). The conception and result of the proceeding will show to what the parties were fighting for the matters upon which the issues were joined even if technically framed in an inappropriate language from the stand point of a legal technocrat and the decisions of the native or customary (nay Sharia) Court in those issue.”
See also SALATI VS SHEHU (1986) NWLR (PT. 15) 198, IKPANG VS EDOHO (1978) 6-7 SC,
OGO VS OGO (1964) NWLR 179,
AOKO VS FAGABEMI (1961) ALL NLR 400. ABUBAKAR MAHMUD TALBA, J.C.A.
POSITION OF LAW REGARDING APPELLATE INTERFERENCE WITH THE DECISION OF THE LOWER COURT
It is trite fundamental doctrine, applicable both under the Sharia and common law that an appellate Court will not interfere with the concurrent findings of fact of the lower Courts unless such findings cannot be vouched by the facts and/or evidence on record. See BELI VS UMAR (2005) LPELR-11299 (CA), WOLUCHEM VS GUDI (1981) 5 SC 291, ODOFIN VS AYOOLA (1984) 11 SC 72, ADEROUNMU VS OLOWU (2000) 2 SCNJ 192. ABUBAKAR MAHMUD TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Sharia Court of Appeal Argungu Judicial Division, Kebbi State. The judgment was delivered on the 8th day of February, 2018 in appeal NO: SCA/KBS/GWD/57/017.
This case emanated from Upper Sharia Court Gwandu where the appellant instituted an action against the respondent claiming for the division of inheritance of nine (9) farms left behind by their grandfather. The farms are located as follows:
1. Asarara district.
2. Tasha district seven (7) farms.
3. Fadama farm at Gumbi.
After the claim of the appellant was read to the respondent he replied thus:
“I heard but what he said is not true. These issues have already been divided and there are those that did not belong to our grandfather. They belong to our father, as such I disagree with this claim and wish to present my son M. Sani as my representative over this trial.”
After the measurement of the farms in dispute was done by the trial Court Registrar and same was read to the parties, the appellant reiterated his claim. While the respondent explained further that the Tasha farm belong to his father and Alh. Shehu and his brother. And that the Tasha farm was confirmed to his father by the Court. The trial Court demanded the respondent to present a document evidencing his assertion that the Tasha farm was confirmed to his father by the Court.
After hearing the parties, the trial Upper Sharia Court Gwandu conducted IZARI and entered judgment in favour of the respondent. The Court ordered that the Asarara farms should be divided and Tasha farm are not part of inheritance of the appellant grandfather as he claimed.
Aggrieved by the decision of the trial Upper Sharia Court Gwandu, the appellant appealed to Sharia Court of Appeal Argungu judicial Division Kebbi State (herein after referred to as the lower Court).
After hearing the appeal, the lower Court affirmed the decision of the Upper Sharia Court Gwandu. Being further aggrieved by the decision of the lower Court, the appellant appealed to this Court vide a notice of appeal filed on 17th April, 2018, with two grounds of appeal.
The grounds of appeal are as follows: –
GROUNDS OF APPEAL
1. The judgment of the lower Court is against the weight of evidence.
2. The learned khadis of the lower Court (Kebbi State Shariah Court of Appeal Argungu Division) erred in-law when they upheld the judgment of Upper Sharia Court Gwandu and thereby occasioned a serious miscarriage of justice, when the respondent did not present a certified true copy of the judgment of the Court to prove his claim over the Tasha farms which he claimed to be confirmed to his father by the Court.
PARTICULARS
a. The Respondent Right from the trial Court claimed the Tasha farm are not part of inheritance of their grandfather, the farms were confirmed to his father and his father’s brother by the Court.
b. It is trite law that whoever raises the issue of estoppel he must present the certified true copy of the judgment by a Court of competent jurisdiction.
At the hearing of the appeal on the 23rd June, 2020 Nasiru Sahabi of counsel adopted the appellant brief of argument filed on the 6th December, 2018 and he urged the Court to allow the appeal. Aminu Hassan of counsel adopted the respondent brief of argument filed on the 27th of March, 2019, and he urged the Court to dismiss the appeal. From the two grounds of appeal the appellant distilled a sole issue for determination thus:
Whether the lower Court Kebbi State Sharia Court of Appeal Argungu judicial Division erred in-law to uphold the judgment of the trial Court Upper Sharia Court Gwandu, when there is no record in proof of the respondent claim that the Tasha farms were confirmed to his father by the Court.
The respondent equally distilled a sole issue for determination thus;
Whether from the record before this Honourable Court there is evidence in support of the respondents claim that the Tasha farms was confirmed to the respondent’s father.
The fulcrum of this appeal is the issue as to whether there is evidence on record to support the respondents claim that the Tasha farm was confirmed to the respondent’s father by the Court. It is for this reason I adopt the issue raised by the respondent for the determination of this appeal.
Arguing the appeal, the appellants counsel submitted that it is an established principle of Islamic law that a claimant for estoppel per res judicater must prove such by presenting two credible witnesses or a duly certified and authenticated judgment of the Court for his plea to succeed. He referred to BULGATUS SALIK FI AKARABUL MASALIK VOL 2 PAGE 333
… (Arabic citation)
Learned counsel submitted that the respondent before the trial Court neither presented two credible witnesses or presented certified true copy of the judgment of the Court of competent jurisdiction to prove his claim and no evidence was reflected on the record of appeal in proof of his claim. He submitted further that it is an established principle of Islamic law that a judge should not deliver judgment in favour of anybody except if he presented a credible evidence before him in proof his claim. He referred to the book of MAWAHIBUL HALAQ VOL 1 PAGE 130
…(Arabic citation)
Learned counsel urged the Court to resolve the lone issue in favour of the appellant.
The respondent counsel in his submission contended that the lower Court was right when it dismissed the appellants appeal and affirmed the decision of the trial Court because there were sufficient evidence that Tasha Farm was not part of the inheritance having been confirmed to be owned by the respondent’s father by the Court of competent jurisdiction. Learned counsel referred to pages 5 and 6 of the record of appeal and he submitted that the appellant admitted, being aware of the Court’s decision in which the TASHA farm was confirmed to the respondent’s father but he did not agree. The appellant stated that:
“I heard but I disagree all the farm are part of the inheritance, and it is true a trial was conducted, but they did not belong to Alh. Shehu alone.”
Learned counsel referred to the book of HADDABU VOL 6 PAGE 157.
…(Arabic citation)
He submitted that the law is trite that the appellate Court will not temper or disturb the concurrent findings of two lower Courts save where there is obvious miscarriage of Justice. And that there is no miscarriage of justice from the judgments of the trial Court and the lower Court. He concluded that the Court is bound by the record before it and he urged the Court to resolve the issue in favour of the respondent by dismissing the appeal and affirming the judgments of the Courts below with substantial cost against the appellant.
The crux of this appeal is the contention of the appellant that there is no evidence on record to support the claim of the respondent that the TASHA farm were confirmed to the respondent’s father by a Court of competent jurisdiction. The appellant further contended that no any record or judgment was shown or admitted in evidence by the Court to prove the claim of the respondent and nothing was reflected on the record of appeal to show that there is a judgment of a Court of competent jurisdiction to which the Court relied upon.
It is quite simple to resolve this issue because the Court is bound by the record of appeal. An appellate Court relies on the record of appeal to find out, among other things how proceedings of the Courts below were conducted.
In other words, the record of appeal is the only document which is relied upon by appellate judges when deciding appeals and in finding out what transpired in the trial Court. See OMOKUWAJO VS FRN(2013) 9 NWLR (PT. 359) 300, NITEL LTD VS IKPI (2007) 8 NWLR (PT. 1320) 396 and FORTUNE INT’L BANK PLC VS CITY EXPRESS BANK LTD (2012) 14 NWLR (PT. 1319)86.
Furthermore, an Appeal Court is fully and correctly entitled to look at or refer to the record of appeal before it in consideration of any matter before it.
See FUNDUK ENGINEERING LTD VS MCARTHUR (1995) 2 NWLR (PT. 392) 640,
TEXACO VS SHELL (2002) 2 SCNJ 118,
FUBARA & ORS VS CHIEF MINIMAH & ORS (2003) 5 SCNJ 142,
SAPO VS ANIBIRE (2010) 42 (PT. 2) N.S.C.Q.R. 927.
Now pages 5-6 of the record of appeal contain the proceedings of the Upper Sharia Court Gwandu relating to the issue in contention. It is therefore important to produce the said proceedings for a better appreciation. The proceedings began when the claim of the appellant was read to the respondent and the respondent gave the following answers at page 5 of the record thus;
“Ans: Resp: I heard but the Tasha farms which he is requesting to be divided are not part of the inheritance. They belonged to my father Alh. Shehu and his brother. They disputed over these farm from this Court up to Sharia Court of Appeal Birnin Kebbi, and they were confirmed to him and his brothers.
These are the 3 farms which the plaintiff divides into 7. They are not 7 farms but 3 and they are not part of the inheritance which the plaintiff is claiming. These farms belong to Alh. Shehu Aulu excluding the plaintiff.
The Asarara farms are for inheritance and they are divided and he stated this himself that he was allotted. But if he feels he is not satisfied then they should be divided. But the Tasha farms are not part of the inheritance, they belong to Alh. Shehu. He dispute with Jibrin Gwandu and they were confirmed to him.
Court: to the plaintiff: You heard what the respondent representative said, is this true?
Ans: I heard but I disagree all the farms are part of the inheritance, and it’s true that a trial was conducted, but they did not belong to Alh. Shehu alone.
Court: to the Resp: Respondent where is the evidence that a trial was conducted and the farms were confirmed to Alh. Shehu which you are asserting?
Ans: there is a document of this court Upper Sharia court Gwandu up to the Sharia Court Birnin Kebbi.
Court: case adjourned to 25/7/2017 for continuation.
The proceedings at page 6 of the record is thus;
Court: To the Resp: respondent have you come with the Documents?
Ans: I come with them and here they are.
Court: to the plaintiff: You have seen these Documents are you aware of them and what do you wish to say?
Ans: I heard and I know a trial was conducted between Alh. Shehu and Jibrin Gwandu. It was said that it was confirmed to Alh. Sani for they were his own. But I disagree for they are for inheritance.
Court: To the Resp: Resp: You heard, what do you have to say?
Ans: I heard but the plaintiff has no share over these three farms for they belonged to Alh. Shehu and his brothers. They did not belonged to the grandfather. It is the farms at Asarara that were for inheritance.
Court: case adjourned to 8/8/2017 for continuation and also for perusal over the documents presented by the Respondent.”
From the above record of proceedings, it is crystal clear that some documents were presented before the Upper Sharia Court Gwandu to prove the fact that there is evidence of Court documents to support the claim of the respondent that the TASHA farms were confirmed to the respondent’s father by a Court. The said documents were shown to the appellant and he confirmed that he knew a trial was conducted between Alh. Shehu and Jibrin Gwandu. It was said that it was confirmed to Alh. Sani for they were his own. But the appellant stated further that he disagrees for they are for inheritance. The fact that the appellant had confirmed knowledge of the documents, he is bound by the records. And the fact that the appellant disagree with the decision is of no moment. There are procedures required to be followed in order to show his disagreement with the decision on the document. The important aspect of it in this appeal is that there is evidence on record to show that a Court document was presented before the trial Upper Sharia Court Gwandu. It is well settled that the contents of record of proceedings are binding both on the Court and the parties. See CHIEF FUBARA & ORS VS CHEF MINIMAH & ORS (SUPRA) and SAPO VS ANIBIRE (SUPRA).
The appellant herein is estopped from raising the issue relating to a Court document being presented before the Upper Sharia Court Gwandu. Once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See I.G.P VS UBAH (2015) 11 NWLR (PT. 1471) 405, LADEGHA VS DUROSIMI (1978)3 SC 91, BAMISHEBI VS FALEYE (1987) 2 NWLR (PT. 54) 51, ADIGUN VS GOV. OSUN STATE (1995) 3 NWLR (PT. 385) 513.
It is observed that the appellant is trying to take an advantage of the fact that the Court document that was presented to the Upper Sharia Court Gwandu was not admitted as an exhibit. But then it is trite that Sharia Courts are not strictly bound by the provision of the Evidence Act. It is equally trite, that under Islamic Law, a Court is duly accorded with an unfettered discretion to consider facts and circumstance of the case before it and do Justice to the respective parties devoid of technicalities. In matters of practice and procedure, Sharia Court are not strictly bound by the provisions of the evidence Act but it’s a guide to the Sharia Courts. In the case of ZAIDAN VS MOHSSEN (1973) 11 SC 1 @ 21, the apex Court held thus;
“Great latitude must be given to and a broad interpretation placed upon native (nay sharia) Court cases so that the earlier proceedings, the evidence of the parties and the judgment must be examined in order to determine what the native or customary. (nay sharia) Court case is all about. (AJAYI VS AINA 16 NLR PAGE 67). The conception and result of the proceeding will show to what the parties were fighting for the matters upon which the issues were joined even if technically framed in an inappropriate language from the stand point of a legal technocrat and the decisions of the native or customary (nay Sharia) Court in those issue.”
See also SALATI VS SHEHU (1986) NWLR (PT. 15) 198, IKPANG VS EDOHO (1978) 6-7 SC,
OGO VS OGO (1964) NWLR 179,
AOKO VS FAGABEMI (1961) ALL NLR 400.
Without any doubt, all the arguments and submissions of learned counsel to the appellant on the fact that there is no any record or judgment that was shown or admitted in evidence by the Court to prove the claim of the respondent and nothing was reflected on the record of appeal to show that there is a judgment of a Court relied upon, are a total misconception and lacking in merit.
The lower Court was perfectly right in its decision affirming the judgment of the Upper Sharia Court Gwandu. It is trite fundamental doctrine, applicable both under the Sharia and common law that an appellate Court will not interfere with the concurrent findings of fact of the lower Courts unless such findings cannot be vouched by the facts and/or evidence on record. See BELI VS UMAR (2005) LPELR-11299 (CA), WOLUCHEM VS GUDI (1981) 5 SC 291, ODOFIN VS AYOOLA (1984) 11 SC 72, ADEROUNMU VS OLOWU (2000) 2 SCNJ 192.
Consequent to the above trite principle of law, the lone issue is resolved against the appellant in favour of the respondent. Resultantly the appeal lacks merit and it is dismissed. The judgment of the Sharia Court of Appeal Argungu judicial Division Kebbi State, delivered on the 8th day of February, 2018 in Appeal No: SCA/KBS/GWD/57/017 is hereby affirmed. Cost of (₦50,000:00) fifty thousand awarded against the appellant in favour of the respondent.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree
FREDERICK OZIAKPONO OHO, J.C.A.: I agree
Appearances:
Nasiru Sahabi, Esq. For Appellant(s)
Aminu Hassan, Esq. For Respondent(s)