HARUNA & ORS v. MAI-JEGA

CITATION: (2018) LPELR-46779(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON FRIDAY, 7TH DECEMBER, 2018Suit No: CA/S/83S/2017

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

Between1. ALH. GARBA HARUNA2. MUSLIM HARUNA3. JUNAIDU HARUNA4. ABDUSSALAM HARUNA

- Appellant(s)

AndALH. HARUNA HARUNA MAI-JEGA - Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - DOCUMENTARYEVIDENCE: Effect of an unsigneddocument<span style="font-size: 12px;">"Thelaw is that an unsigned documentcarries no evidential weight. This Courtper Ogbuinya, JCA, held in OctsEducation Service Ltd. v. PadsonIndustries Ltd. &amp; Anor (2012) 47WBN Pg. 102 @ 108 thus.- "It is tritelaw tha t uns igned documentc o m m a n d s n o v a l u e i n l e g a lproceedings". See also the cases ofOmega Bank (Nig.) Plc. V. O. B. C. Ltd.(2005) S.C. (Pt. I) 49, UBN Plc V.Toyinbo (2009) 13, WRN, Pg. 143 @152 and Colito (Nig.) Ltd. V. Daibu( 2 0 1 0 ) 6 W R N P g . 7 2 @81."</span>Per MUKHTAR, J.C.A. (P. 8,Paras. B-D) - read in context

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2. ISLAMIC LAW AND PROCEDURE -ESTATE OF A MUSLIM: How to provea claim to a deceased muslims estate;effect of failure to so do<span style="font-size: 12px;">"Thelaw is well settled that a claim to adeceased Muslim's estate does notonly require credible evidence. Thenormal credible evidence that would incases other than a claim to a deceasedproperty or that of a lost person whocannot come to Court to accept ordeny the claim, only qualifies theclaimant to taking the oath of YaminulQada'i (the oath of judgment). In theinstant case the respondent did notadduce such evidence as would qualifyhim to taking the oath of YaminulQada'i. Thus, he did not reach the lasthurdle of the requirement of evidence,much less crossing it. The issues 1, 2 3and 4 cannot but be resolved againstthe Respondent and in favour of theAppellants."</span>Per MUKHTAR,J.C.A. (P. 14, Paras. B-E) - read incontext

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3. LAND LAW - CERTIFICATE OFOCCUPANCY: Whether mereproduction of certificate of occupancyentitles a party to declaration of titleto land"The mere production of a Certificateof Occupancy does not by itself entitlea party to a declaration of title. Seethe cases of Izevbigie v. Olubor (2005)AFWLR (Pt. 290) Pg. 1546 @ 1561 andBuremoh V. Akande (2000) NWLR (Pt.690) Pg. 260 @ 286."Per MUKHTAR,J.C.A. (P. 9, Para. A) - read in context

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HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading

Judgment): This appeal springs out from the judgment of

the Kebbi State Shari'a Court of Appeal, Birnin Kebbi

Division 1, delivered on the 28th day of February 2017. The

Court below overturned the decision of the Upper Shari’a

Court, Jega, Kebbi State.

The Appellants herein instituted this suit against the

Respondent before the tr ia l Court in Suit No.

USC/JG/CV/48/2016, claiming that the farmland in dispute

belongs to their late father (Alhaji Haruna III Sarkin Kabi

Jega) who died in 2006, which farmland has been in

possession of the Respondent. The Appellants prayed the

Court to divide the said farmland among the heirs as the

estate left by their deceased father. They listed the names

of all the heirs. The Respondent denied the claim and

claimed that the said farmland belongs to him alone as it

was given to him as a gift by their deceased father since

1983. He further claimed that all the Appellants were

aware of the said gift and he (the respondent) has been in

possession and enjoying all possessory rights for about 30

years.

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In line with the tenets of Islamic Law, the trial Court called

upon the Respondent to present witnesses in support of his

claim. The Respondent informed the Court that his

witnesses are his step mothers and they were all

summoned before the Court as witnesses but all testified

that they don't know about the alleged gift.

The respondent then tendered in evidence a document

claimed to have written by the appellants’ father, which the

appellants challenged and denied same. The lower Court

allowed the respondent to call witnesses acquainted with

the handwriting and signature of the maker of the

document tendered by the respondent (handwriting of their

late father) and used such evidence to confirm the gift of

the farmland to the respondent and set aside the judgment

of the trial Court delivered on the 22nd day of November

2016, which dismissed the Appellant’s claim and ordered

the distribution of the property to the heirs of the late

Alhaji Haruna III Sarkin Kabi Jega and ordered that it

should be divided among his heirs.

The appellants were aggrieved by the lower Court’s

judgment and therefore appealed to this Court by filing the

Notice of

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Appeal on 9th March 2017, on following five (5) grounds

reproduced bereft of their particulars: -

1. The lower Court erred in law and thereby

occasioned a serious miscarriage of justice when the

learned Kadis quashed the decision of the trial Court

and confirmed the purported gift of the farmland in

dispute in favour of the Respondent.

2. The learned Kadis erred in law and thereby

occasioned a serious miscarriage of justice when they

held in their judgment that the contents of exhibits

'C' and 'D' alone suffices to establish that the

farmland in dispute belongs to the Respondent.

3. The learned Kadis of the lower Court misdirected

themselves when they failed to adhere to the

principles of Islamic Law relating to claim of the

property of a deceased person.

4. The lower Court erred in law and thereby

occasioned a serious miscarriage of justice when the

learned Kadis failed to properly evaluate the evidence

led by the Respondent.

5. The decision of the lower Court is against the

weight of evidence.

The Appellants submitted the following four issues for

determination in this appeal: -

i. Whether based on the evidence adduced before the

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Court, the Respondent was able to establish his claim

that the farmland in dispute was given to him as gift

by his father. (Distilled from ground one of the Notice

and grounds of Appeal)

ii. Whether the contents of exhibits 'C' and 'D' alone

suffices to establish that the farmland in dispute

belongs to the Respondent without making reference

to the validity or otherwise of the contents of exhibit

'A'. (Distilled from ground two of the Notice and

grounds of Appeal)

iii. Whether the procedure adopted by the Lower

Court in confirming title over the farmland in dispute

to the Respondent is known to Islamic Law as regards

to a claim over the property of a deceased person.

(Distilled from ground three of the Notice and

grounds of Appeal)

iv. Whether the Lower Court properly evaluated the

evidence adduced by the Respondent in support of his

claim. (Distilled from grounds four and five of the

Notice and grounds of Appeal)

The Respondent adopted the same four issues raised by the

appellant.

The learned counsel for the appellant A. A. Fingilla, Esq

argued issues 1 and 2 together. The treatment of the 1st

and 2nd issues will also effectively dispose of

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issue four. The said three issues are reproduced thus:

“1. Whether based on the evidence adduced before

the Court the Respondent was able to establish his

claim that the farmland in dispute was given to him

as gift by his father.

2. ’Whether the contents of exhibits C' and ‘D alone

suffices to establish that the farmland in dispute

belongs to the Respondent without making reference

to the validity or otherwise of the contents of exhibit

A 3. Whether the Lower Court properly evaluated the

evidence adduced by the Respondent in support of his

claim.”

It was submitted for the appellant that Islamic Law

requires that he who asserts must prove his assertion by

calling evidence to establish his case. Reference was made

to the book titled 'Thamarud-Dani page 608, which provides

thus:

...(Arabic Citation)

Further reference was also made to the cases of

Muhammad A. Aidami V. Bukar Kusumi (2007) 3 SLR

(Pt. iv) Pg. 208 at 213 and Mafolaku V. Alamu (1990)

1 L.R 60 @ 73.

It has been settled by an avalanche of decided judicial

authorities that the burden of proof is always on he who

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asserts to establish his claim. Reference was made to the

cases of Kande Mudi V. Jofe Bafillace (2006) 3 SLR

(Pt. I) Pg. 37 at 39 and Rada V. Malunfashi (1993) 7

NWLR (Pt. 303) Page 1 at 17, where the Apex Court, Per

Wali JSC held thus. -

“The general principles of Islamic Law relating to

claim in civil matters in both movable and immovable

property is that proof is complete by the evidence of

two male unimpeachable witnesses or such one male

and two female or more witnesses with Claimant's

oath in either case.”

Further refence was made to page 34 of Ihkamul Ahkam

(short commentary on Tuhfatul Hukkam) and the case of

AIh. Abdulkadir Sarkin Jushi Waje V. Alhaji Tukur

Jushi (2006) 3 SLR (Pt. I) page 153 at 156-157.

The evidence as shown by the record of the lower Court

shows that the Respondent’s claim to effect that the

farmland in dispute was given to him as a gift by his

deceased father prior to his demise was not supported by

credible evidence. In an attempt to establish his claims, the

Respondent tendered some documents before the trial

Court which were admitted in evidence and marked as

follows:-

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- Exhibit 'A' (Letter of Gift),

- Exhibit 'B1' (Letter to Jega Local Government dated

23/06/1986),

- Exhibit 'B2' (Departmental Receipt No. 21920 dated

23/6/1986),

- Exhibit 'CA' (Certificate of Occupancy with Ref. No. 294

issued by Jega Local Government, dated 11/5/1987), -

Exhibit 'CB' (Proposed Sketch Plan),

- Exhibit 'CC' (Departmental Receipt issued by Jega Local

Government, dated 9/5/1989 No. 9076),

- Exhibit 'O' (Letter of Grant from Kebbi State Government

dated 10/08/2007),

- Exhibit 'E' (Certificate of Occupancy No. JI/P/0679.

From the documents tendered by the Respondent before

the trial Court, the most relevant is exhibit 'A', which reads

thus:-

"After greetings, I wish to inform you that I inherited

this farm from my father in 1925 excluding anyone. I

gave it to him alone and he has been working in the

farm for the past 6 years without any dispute from

anybody".

One wonders in what way exhibit 'A' supports the

Respondent's claim before the trial Court. It seems to be at

large regarding the identity of the particular farmland in

question. The content is vague and the said letter can

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be used for any farmland as it neither stated the location of

the farmland to which it refers nor does it disclose the

person in whose favour the alleged gift was made.

Moreover, it was not signed by the maker thereof.

The law is that an unsigned document carries no evidential

weight. This Court per Ogbuinya, JCA, held in Octs

Education Service Ltd. v. Padson Industries Ltd. &

Anor (2012) 47 WBN Pg. 102 @ 108 thus.-

"It is trite law that unsigned document commands no

value in legal proceedings".

See also the cases of Omega Bank (Nig.) Plc. V. O. B. C.

Ltd. (2005) S.C. (Pt. I) 49, UBN Plc V. Toyinbo (2009)

13, WRN, Pg. 143 @ 152 and Colito (Nig.) Ltd. V.

Daibu (2010) 6 WRN Pg. 72 @ 81.

From the above observations, the trial Court was right to

have disregarded the contents of exhibit 'A' and all other

subsequent documents issued or obtained by the

Respondent connected with and defending on the merit of

exhibit 'A'. The lower Court was therefore wrong to have

quashed the decision of the trial Court and confirmed title

over the farmland in dispute to the Respondent on the

strength of exhibit 'A' and other documents connected

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thereto. The mere production of a Certificate of Occupancy

does not by itself entitle a party to a declaration of title.

See the cases of Izevbigie v. Olubor (2005) AFWLR (Pt.

290) Pg. 1546 @ 1561 and Buremoh V. Akande (2000)

NWLR (Pt. 690) Pg. 260 @ 286.

The Court was urged to resolve both issues in favour of the

Appellants, allow the appeal, set aside the judgment of the

Lower Court and affirm the decision of the trial Court.

The Learned Counsel for the respondent Bello Abubakar,

Esq submitted that evaluation of evidence is the duty of the

trial Court not the appellate Court, an exception to this

general principle will only arise where it is shown to

amount to a miscarriage of justice. See the case of

AYORINDE VS AYORINDE (2011)17 WRN 74 at 83.

It was argued that the contents of exhibit A relates to

purported gift of the piece of land in dispute that was

allegedly given to the respondent by his father. And that he

had worked and enjoyed possessory right over the land for

6 years prior to the the gift.

The Respondent’s counsel urged the Court to resolve the

issue against the Appellants in favour of the respondent. It

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was further argued for the Respondent that the

handwriting witnesses ought to have been called to testify.

See the cases of ZIMIT VS MAHMOOD (1993) 1 NWLR

(PT 26) P. 76 AT 91, PARAS. A-B, OGUNGBEMU VS

ASAMU (1986) 3 NWLR (PT. 27) 161; BELLO VS

RINGIM (1991) 7 NWLR (PT. 206) 688; M.I.A AND

SONS LTD V. FHA (1991)8 NWLR (PT 209) 295.

It was submitted for the Respondent that where an

appellate Court finds that a miscarriage of justice has been

occasioned, in the proceedings of the trial Court, the

appellate Court may direct for the calling of individual

witnesses, evaluation of the evidence or doing the omitted

procedure in the interest of justice and hence the lower

Court was right when it breached the gap left by the trial

Court in calling independent witnesses who are acquainted

with the hand writing of the deceased father of the parties

as used in exhibit A. See the cases of ALHAJI FATAl

ADEKUNLE TERIBA VS AYOADE TIAMIYU ADEYEMO

(2010) 4 S.C.N.J PG. 59 AT 61 AND 70, where the

Supreme Court held thus:

“…where however, from the nature of the evidence,

the evaluation would not entail demeanor and

credibility of witnesses and simply entails the

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examination of oral and documentary therefrom, the

appellate Court is in as vantage position as the trial

Court to evaluate or re-evaluate same to see if the

finding of the trial Court is supported by the

evidence. Where the findings of the trial Court are

not supported by the evidence then the appellate

Court can Intervene and substitute therewith findings

supported by the evidence."

The Learned Counsel for the Respondent urged the Court

to resolve issue 1 in favour of the Respondent and dismiss

the appeal. The fact that exhibit A is not signed, it will

serve no useful purpose to call handwriting experts to

identify whose hand writing it was. It simply has no

evidential value more to say that it could be a mere

proposal, which falls short of committal by whoever might

have written it. I resolve this issue in favour of the

Appellant and against the Respondent.

ISSUES 3

“3. Whether the procedure adopted by the Lower

Court in confirming title over the farmland in dispute

to the Respondent is known to Islamic Law as regards

to a claim over the property of a deceased person."

Under Islamic Law, where a person claim ownership over a

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deceased's property, the evidence of two credible witnesses

do not suffice in establishing his claim, he must go further

to subscribe to an oath of judgment (Yameenul Qadai)

which the lower Court should consider. Such oath to a

claimant over a deceased person's property is aimed at

protecting such property since the deceased will not be

available to dispute or rebut the claim. It also proffered

where the claim involves the property of a person who has

been absent and his whereabout is unknown. In view of the

fact the subject matter involves a claim affecting deceased

person's estate the respondent must be made to take the

oath of 'Yaminui Qadai' (Oath of judgment) even after

adducing credible evidence, which in the instant case has

not been done.

I n c a s e o f H a j i y a H a b i b a a . A n o r v . H a j i y a

Aishatu (unreported) Appeal No. CA/S/II7S/20I4, per

Hussein Mukhtar JCA this Court held thus: -

“It is trite position of the law that when a person is

claiming against the estate of a deceased person or a

minor or against any person who is unavailable, the

ordinary proof of providing two competent witnesses

will not suffice. The law requires that the oath of

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'Yaminui Qadai should be taken by the claimant in

addition to satisfying the ordinary method of proving

the claim: "

It was argued that the lower Court did not comply with the

required procedure of the law which is fatal to the entire

proceedings and judgment of the lower Court.

Under Islamic Law, where a person claims ownership over

a deceased's property, the evidence of two credible

witnesses do not suffice to establishing the claim. He must

go a mile further to subscribe to an oath of judgment

(Yameenul Qada'i) which the Court below failed to

consider.

The Court was urged to resolve this issue in favour of the

appellant and allow the appeal.

It was argued for the Respondent that the general principle

of Islamic Law is that a party who asserts must prove his

case for him to be entitled to the judgment and that this

should be done by providing 2 witnesses of unimpeachable

character to support his claim, or where he has 1 witness

will be administered on oath in addition. A party also who

has a documentary evidence may prove his case by

presenting such document in evidence.

It was submitted for the Respondent that it is not in every

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case that such Oath of judgment is necessary and that in a

situation where a person claim a gift on the property of a

deceased person and the heirs are adults the Oath is not

necessary in so far as the person claiming gift prove the

said gift. The Court was urged to resolve the issue in favour

of the respondent.

The law is well settled that a claim to a deceased Muslim’s

estate does not only require credible evidence. The normal

credible evidence that would in cases other than a claim to

a deceased property or that of a lost person who cannot

come to Court to accept or deny the claim, only qualifies

the claimant to taking the oath of Yaminul Qada'i (the oath

of judgment). In the instant case the respondent did not

adduce such evidence as would qualify him to taking the

oath of Yaminul Qada'i. Thus, he did not reach the last

hurdle of the requirement of evidence, much less crossing

it. The issues 1, 2 3 and 4 cannot but be resolved against

the Respondent and in favour of the Appellants.

The resolution of all the issues against the Respondent

spells out the meritorious nature of this appeal. The appeal

is successful and hereby allowed. The judgment of the

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lower Court (the Kebbi State Shari'a Court of Appeal,

Birnin Kebbi Division) delivered on the 28th day of

February 2017 is accordingly set aside and the judgment of

the Upper Sharita Court, Jega, Kebbi State delivered in Suit

No. USC/JC/CV/48/2016 is restored.

The appellants are entitled to costs assessed at Fifty

Thousand Naira (N50,000.00) against the respondent.

AMINA AUDI WAMBAI, J.C.A.: I have read the judgment

of my learned brother, DR. Hussein Mukhtar, JCA. I am in

agreement with his reasoning and conclusion that there is

merit in this appeal. I adopt his reasoning in allowing the

appeal and abide the consequential orders setting aside the

judgment of the lower Court delivered on 28/2/17 and

restoring the judgment of Upper Sharia Court Jega, Kebbi

State in Suit No. USC/JG/CV/48/2016. I abide the

consequential order on cost against the Respondent.

FREDERICK OZIAKPONO OHO, J.C.A.: I had

opportunity of reading the draft of the Judgment of my

learned Brother HUSSEIN MUKHTAR, JCA just delivered

and I am in agreement with his reasoning and conclusions

in allowing

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the Appeal as meritorious and hereby succeed. I abide by

other consequential orders made in the lead judgment.

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Appearances:

A. A. Fingilla, Esq. For Appellant(s)

Bello Abubakar, Esq. For Respondent(s)

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