SANYINNA v. SANYINNA

CITATION: (2019) LPELR-46481(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON FRIDAY, 18TH JANUARY, 2019Suit No: CA/S/124/2017

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of AppealABDULLAHI MAHMUD BAYERO Justice, Court of Appeal

BetweenALHAJI SODANGI SANYINNA - Appellant(s)

AndALH. ABUBAKAR SHARUBUTU SANYINNA - Respondent(s)

RATIO DECIDENDI

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1. COURT - RAISING ISSUE(S) SUO MOTU: Atwhat instance will a court be accused ofraising an issue suo motu"It is trite that when a judge raises an issue onhis own motion which is not before the Courthe is said to raise it suo motu. See IKENTABEST (NIG) LTD V. A. G. RIVERS STATE (2008)MSCQR Vol. 32 1074 at 1106."Per BAYERO,J.C.A. (Pp. 20-21, Paras. F-A) - read in context

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2. E V I D E N C E - T R A D I T I O N A LEVIDENCE/HISTORY: Effect of gaps inPlaintiffs' root of title based on traditionalhistory"...From the testimonies of the witnesses asreproduced above, it is clear that none ofthem mentioned the original founder of theland, how he founded it, the particulars of theintervening owners through whom theAppellant claims. It is trite that where a partyhas not given sufficient information as regardsthe origin or ownership of the land and theline of succession to himself, he has just laidfoundation for the failure of his claim. SeeANYAFULU & ORS V. MEKA & ORS(2014) LPELR - 22336 SC and HYACINTHANYANWU V. ROBERT ACHILIKE MBARA &ANOR (1992) 5 SCNJ 90.It is important to note that in the Claim of theAppellant before the trial Sharia Court he saidArdo Sanyinna gave him the permission toclear the farmland in dispute. Ardo Sanyinna istherefore a vital witness in establishing theclaim of title of claim to the dispute farmlandby the Appellant; however he was not calledby the Appellant as one of his witnesses thattestified before the trial Court. This is fatal tothe Appellant's case as the root of his title tothe farmland is not established."Per BAYERO,J.C.A. (Pp. 17-18, Paras. F-E) - read in context

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3. ISLAMIC LAW AND PROCEDURE - PROOFOF TITLE TO LAND: How title to land isproved under Islamic Law where a personclaims property which is in possession ofanother"From the Claim of the Appellant it can bededuced that Ardo Sanyinna gave theAppellant permission to clear the disputedfarmland in Gidan Bude which he did. That theRespondent who was then the Vice Chairmanof Tambuwal local government used his officeand took over the farmland from him. It istherefore clear that the disputed farmland is inthe possession of the Respondent. Theposition under Islamic law where the propertyis in possession of another, the claimant isrequired to prove his claim by call ingwitnesses. If he fails to call witnesses, thedefendant will be called upon to take the oathof rebuttal; but where the defendant has beenin undisturbed possession for up to the periodof Hauzi (prescription), the defendant will notbe called upon to subscribe to the Oath ofrebuttal. He may however be made to takethe oath of judgment..... See KADA V. YAWA(1998) LPELR-1642 SC and IHKAMUL AHKAMShort Commentary on TUHFATUL HUKKAMPages 262-263. It is therefore the duty of theAppe l lant to prove and or show h isentitlement to the reliefs sought."Per BAYERO,J.C.A. (Pp. 13-14, Paras. B-A) - read in context

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4. ISLAMIC LAW AND PROCEDURE - BURDENOF PROOF: How burden o f proof i sdischarged under Is lamic law"In accordance with Islamic law, in civilmatters pertaining to both movable andimmovable properties, the burden of proof isd i s c h a r g e d u p o n e v i d e n c e o f t w ounimpeachable male witnesses, or evidence ofone unimpeachable male witness and two ormore unimpeachable female witnesses ormore witnesses with Claimant's oath in eithercase. See ABUBAKAR & ANOR. V. BASHIR(2017) LPELR - 43272 (CA) Pages 7-8Paragraphs F-C, HADA V. MALUMFASHI (2013)1 SCQLR (Part 4) at Pages 24-26 Paragraphs F-B and BABA V. ARUWA (1986 5 NWLR (Part 44)Page 774."Per BAYERO, J.C.A. (Pp. 18-19,Paras. E-B) - read in context

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5. ISLAMIC LAW AND PROCEDURE -POSSESSION: Whether a person inpossession of a property or a thing can beasked to explain or establish how that thing orproperty came into his possession"...Furthermore, the Respondent who is inpossession of the disputed land need not toprove how he comes into possession.See FALINGO V. FALINGO (2006) LPELR - 5984(CA) and the Book TABSIRATUL HUKKAMwhereit is stated that: - "The person in possessionshall not be asked to explain how the thing inhis possession comes into his hands." TheRespondent who is in possession called 5witnesses out of which the trial Court believed4 of them as is contained at Page 59 of theRecord of Appeal. In FURFURI V. RAWAYYAH(2008) AFWLR (Part 401) Page 1000 at 1010Paragraphs A-B this Court held that: - "..........Possession......is regarded or treated asevidence of one witness. Therefore, theRespondents are more favoured by the weightof evidence than the Appellant."Per BAYERO,J.C.A. (P. 20, Paras. A-D) - read in context

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ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering

the Leading Judgment): This is an Appeal against the

Judgment of High Court of Sokoto State sitting in its

Appellate jurisdiction; Coram Hon. Justice D.B. Sambo and

Hon. Justice M.S. Sifawa in Suit No. SS/USC/01/2015

delivered on 20/12/2016. The facts leading to this Appeal as

gleaned from the record of Appeal are that the Appellant

was the Plaintiff before the trial Sharia Court Dogon Daji,

where he sued the Respondent seeking for a declaration of

title to a farmland situate at Gidan Bude, Tambuwal Local

Government Area of Sokoto State in Suit No. CV/13/2013.

The Respondent denied the claim.

The Appellant/Plaintiff in proof of his Claim, called a total

number of 7 witnesses who testified on his behalf while the

Respondent/Defendant called 5 witnesses. The trial Court

dismissed the Claim of the Appellant/Plaintiff and conferred

t i t l e o f t h e d i s p u t e d f a r m l a n d o n t h e

Respondent/Defendant. Dissatisfied, the Appellant appealed

to the Upper Sharia Court Tambuwal on 6 grounds. The

Upper Sharia Court Tambuwal after hearing both parties

set aside the Judgment of the trial Court and entered

Judgment in favour of the Appellant by confirming the title

to the land on the Appellant.

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Dissatisfied, the Respondent appealed to the Appellate

Division of the High Court of Justice Sokoto State. The

Court after hearing the case set aside the decision of the

Upper Sharia Court, Tambuwal and affirmed the Judgment

of the Sharia Court Dogon Daji. Miffed by the Judgment of

the lower Court, the Appellant lodged this Appeal out of

time but by leave of this Court granted on 27th March,

2017.

The Record was deemed compiled and transmitted on

18/01/18; the notice of Appeal was filed on 27th March,

2017 upon three grounds of Appeal.

Specifically, the part of the Judgment complained about is

as follows:

GROUND TWO

The lower Court erred in law when in its Judgment

conferred the title over the disputed land to the

Respondent.

1) Whereas it was conspicuously clear from the

record that the Respondent never claim title over the

land.

2) Whereas it was conspicuously clear that the

Respondent never claim that the land was granted to

him by Tambuwal Local Government Council.

3) Whereas the evidence led by the Respondent

cannot support his case as they are at variance with

his claim.

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GROUND THREE

The learned Justices of the High Court erred in law

when they suo moto raised the issue of the Appellant

admitting not having title over the disputed land and

relied on it as an admission by the Appellant in their

Judgment without affording the Appellant the

opportunity to be heard, thereby infringing on his

Constitutionally guaranteed right to fair hearing.

Parties exchanged briefs of argument which were

respectively adopted on 23rd October 2018. The

Appellant’s brief filed on 2/3/18 was settled by M.A. Sambo

Esq. while that of the Respondents filed on 24/09/18 and

deemed on 25/09/18 was settled by Ibrahim Abdullahi Esq.

From the three grounds of Appeal, learned Appellant’s

counsel distilled two issues for determination, which were

adopted by the Respondent as follows:

1) Whether it was just and right for the lower Court to

affirm the dismissal of the Appellant’s Claim by the

Sharia Court Tambuwal

2) Whether the lower Court raised any issue suo moto

without affording the parties opportunity to address it

on the issue raised.

SUBMISSIONS OF APPELLANT’S COUNSEL

On the first issue learned Appellant’s Counsel submitted

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that the Appellant first cleared, settled on the disputed land

and made the area lively. That in proof of his claim, he

cal led 7 witnesses. He referred to AYOOLA V.

ODOFIN (1984) 11 SC at 114 and submitted that it is

trite that first settlement by traditional evidence is one of

the most reliable modes of acquisition of good and valid

title to land. He cited the evidence of PW1, PW2 and PW5

contained at Pages 4 and 6 of the Record of Appeal and

submitted that their testimonies were never impeached or

controverted and clearly support the claim of the Appellant

that he was the original settler on the farm who founded it.

According to Counsel, the defendant only came into the

picture when he was appointed as Chairman of the

Committee to reconcile the dispute between Miyetti Allah

herdsmen and farmers (of which the Appellant was among

the farmers) by Tambuwal Local Government when the

Respondent was the Vice Chairman of the Local

Government and in the process took over the said land in

dispute from the Appellant.

He further submitted that their assertion is supported by

the evidence of DW3 and DW5 as reflected at Pages 13 and

15 of the Record of Appeal.

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That the lower Court erred in law when it conferred title to

the land in dispute to the Respondent when he does not

have a claim to it. According to Counsel, a Claimant under

Islamic law has two conditions to fulfill: 1) Stating his

Claim and 2) Explanation.

He referred to the Book IHKAMUL AHKAM which is a

Commentary of TUHFATUL HUKKAM Page 12 where it is

stated: -

Translation: - “And the claim of the Plaintiff must

satisfy two conditions; Identifiability of what it is, and

Explanation.”

Where the above conditions are met he submitted, the

claim will be read to the defendant. The defendant will

either admit it or deny same.

Where he denies, the Plaintiff would be called to prove his

claim.

In land matters, he said, the Plaintiffs succeed by calling 2

male unimpeachable witnesses. That where the Plaintiff

fails to establish his claim, the defendant is called upon to

take oath of rebuttal and he referred to GULMA V.

BAHAGO (1993) 1 NWLR (Part 272) 766 at 768.

Where the defendant counter claims he further stated, both

parties are given the opportunity to prove their respective

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claims and cited USMAN V. KUSFA (2013) 1 SQLR (Part

2) 1 at 4. According to Counsel, in Islamic law, where each

party is a Plaintiff in his own case, each will be entitled to

call witnesses to prove his case. If both produce credible

witnesses the court will examine and see whose witnesses

are more pious and trustworthy and give weight to their

evidence.

In other words where both the Plaintiff claims and the

defendant counter claims, both parties will be called to

prove their claims.

Counsel submitted that in the instant case, the Respondent

had no claim or counter claim before the trial Sharia Court

Tambuwal to warrant him calling witnesses in proving his

claim. That all the witnesses presented by the Respondent

testified that he got his title through an allocation by

Tambuwal Local Government; when no such claim was ever

made by the Respondent before the trial Court.

Counsel submitted that under Islamic law it is not for the

witnesses to make case for the Respondent; and that the

lower Court erred in law when it held that a person in

possession is not asked how he comes into possession. He

said if there is an adverse claim, the person in possession

can be asked how he comes about possession.

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That it was wrong for the trial Court to have allowed the

Respondent to call witnesses since he had no claim before

it.

On issue number 2 whether the lower Court was right when

it suo moto held that the Appellant admitted not having

title to the land in dispute before the trial Sharia Court;

Counsel submitted that a statement is only considered as

an admission which may be oral or written made by a party

to a proceeding before a Court of law and which may be

adverse or detrimental to his interest if it is clear and

unambiguous. He referred to HAMZA V. YUSUF (2013) 1

SQLR (Part 2) 55 at 65. According to Counsel the lower

Court at Pages 61-62 of the Record of Appeal held that the

Appellant admitted not having title to the land in dispute.

That the lower Court made reference to the statement of

the representative of the Appellant before it and held that it

amounted to an admission by the Appellant.

Counsel submitted that even the statement of the

Appellant’s representative which is at Page 2 of the Record

of Appeal shows that the Respondent Alhaji Abubakar does

not have a land there.

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According to Counsel, where a Court raised an issue suo

moto it has to afford the Parties the opportunity to address

it on the issue; failure of which amounts to a breach of fair

hearing. He cited FOMFO V. RIVERS STATE HOUSING

AND PROPERTY DEVELOPMENT AUTHORITY (2005)

5 SCNJ 213, MUHAMMAD V. MUHAMMAD (2005)

AFWLR (Part 275) 502 at 508; and urged the Court to

resolve the second issue in favour of the Appellant and

against the Respondent, allow the Appeal and set aside the

Judgment of the lower Court.

SUBMISSIONS OF RESPONDENT’S COUNSEL

ISSUE ONE

On the first issue for determination, Counsel submitted that

this is a case in which the personal law binding on the

parties is Islamic law. That unlike the position under the

common law system, an Appellate Sharia Court is not

restricted to the grounds or issues raised by the parties

before it. That as reflected at Page 1 of the Records the

claim of the Appellant was for a declaration of title to a vast

area of land and that he based his title on the basis of

permission given to him by Ardo Sanyinna to clear the

farmland.

According to Counsel, it is the duty of the Appellant to

prove

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that Ardo Sanyinna had the powers to give him possession

of the land; and that the land does not belong to anybody

including the Respondent. He referred to HADA V.

MALUMFASHI (2013) 1 SCQLR (Part 4) at 24-26

Paragraphs F-B. That Ardo Sanyinna was not called as a

witness by the Appellant before the trial Sharia Court

notwithstanding that Ardo Sanyinna is alive and a material

witness to the Appellant’s claims. That the evidence of

PW2, PW3, PW5, DW2, DW3 and DW5 which the Upper

Sharia Court Tambuwal held that supported the claims of

the Appellant was clearly against the principles of Sharia

Law, because the evidence of PW2 and PW3 at Pages 4-6 of

the Records does not reveal who owns the disputed land or

how the Appellant came into possession of the farmland.

That it was based on the evidence of DW2, DW3 and DW5

which the Upper Sharia Court Tambuwal held that it

supported the case of the Appellant, Pages 12-17 of the

Records reveal that it was the Respondent that cleared the

land and an allocation was made to him by Tambuwal Local

Government Council after verification was conducted.

According to learned Counsel, the evidence of DW5 which

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is at Page 15 of the Record shows that the disputed

farmland belong to the Respondent, that the Appellant was

not among those that were allocated any land in the 300

hectares of land endorsed by Sokoto State Government.

Counsel submitted that the evidence of PW2 was rejected

by the lower Court because he said he resides in Sokoto

town, he does not have a land that share boundary with the

disputed land and that he was just a passerby as contained

at Page 5 of the Records. It is the Counsel’s submission that

in Islamic law Respondent’s possession of the disputed land

is treated as evidence of one witness and he presented five

witnesses out of which the trial Sharia Court believed four

of them. He referred to ABUBAKAR & ANOR. V. BASHIR

(2017) LPELR- 43272 (CA) Pages 7-8 Paragraphs F-C

and FURFURI V. RAWAYYAH (2008) AFWLR (Part

401) (CA) Page 1000 at 1010 Paragraphs A-B and

submitted that the Respondent is more favoured by the

weight of evidence than the Appellant.

Counsel submitted that the lower Court was right when it

set aside the decision of the Upper Sharia Court Tambuwal

and urged this Court to resolve this issue in favour of the

Respondent.

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SECOND ISSUE

Counsel submitted that it is trite that when a Court raises

an issue suo moto the parties should be heard before a

decision is reached on the issue. He referred to ADENIJI

V. ADENIJI (1972) 4 SC Page 10. According to Counsel,

a Court can only be said to raise an issue suo moto if the

issue does not exist in the litigation and citedIKENTA

BEST (NIG) LTD V A.G. RIVERS STATE (2008)

MSCQR Vol. 32 1074 at 1106. Counsel referred to Page

16 line 21 and Page 17 lines 1-3 of the Records where the

Appellant representative before the trial Sharia Court

stated that the land that the Appellant (Sodangi) revived

belongs to him (the representative) and submitted that the

lower Court was right to have held that the Appellant

representative said that the Appellant had no land.

According to Counsel, the lower Court cannot be said to

have raised suo moto the issue that the representative said

the Appellant had no land. He referred to LEADERS AND

COMPANY LTD & ANOR V. MUSA BAMAIYI (2011)

MSCQR VOL. 46 Page 807.

Learned Respondent’s Counsel referred to Page 61 of the

Record of Appeal where the lower Court held that none of

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the Appellant’s witnesses that testified before the trial

Sharia Court were able to establish how or from whom the

Appellant derived his title to the disputed land; and urged

this Court to dismiss the Appeal.

DETERMINATION OF THE APPEAL

In determining this Appeal, I will adopt the twin issues for

determination formulated by the Appellant which was

adopted by the Respondent. Thus: -

a) Whether it was just and right for the lower Court to

affirm the dismissal of the Appellant’s Claim

b) Whether the lower Court raised any issue suo moto

without affording the parties the opportunity to

address it on the issue raised.

The Claims of the Appellant who was the Claimant before

the trial Sharia Court Tambuwal contained at Page 1 of the

Record of Appeal reads: - “I, Alhaji Sodangi Gidan Bude

sued Alhaji Abubakar Sharubutu Sanyinna before this

Honourable Court because Ardon Sanyinna gave

permission me to clear a farmland in Gidan Bude area, I

and Alhaji Hussaini Gudun and Mallam Abubakar Gudun.

After we have cleared the land, I put manure and harvested

the land, I make the farm lively then Abubakar Sharubutu

showed me

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power, he was the Vice Chairman then for Tambuwal

local government, so now he is not in office that is why I

sued him before this Court so that Court should collect my

farmland situate at Gudun Bude, East bordered with Alkali

Isah, West bordered with Street, South with Mallam

Abubakar Gudun, North Alhaji Hussaini. That is my Claim.”

From the Claim of the Appellant it can be deduced that

Ardo Sanyinna gave the Appellant permission to clear the

disputed farmland in Gidan Bude which he did. That the

Respondent who was then the Vice Chairman of Tambuwal

local government used his office and took over the

farmland from him. It is therefore clear that the disputed

farmland is in the possession of the Respondent. The

position under Islamic law where the property is in

possession of another, the claimant is required to prove his

claim by calling witnesses. If he fails to call witnesses, the

defendant will be called upon to take the oath of rebuttal;

but where the defendant has been in undisturbed

possession for up to the period of Hauzi (prescription), the

defendant will not be called upon to subscribe to the Oath

of rebuttal. He may however be made to take the oath of

judgment….. See

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KADA V. YAWA (1998) LPELR-1642 SC and IHKAMUL

AHKAM Short Commentary on TUHFATUL HUKKAM

Pages 262-263.

It is therefore the duty of the Appellant to prove and or

show his entitlement to the reliefs sought.

To prove his claims, the Appellant at pages 4 - 11 of the

Record of Appeal, called 7 witnesses. The Respondent who

denied the claim called 5 witnesses. At page 18 of the

Record of Appeal the trial Sharia Court held that :- “ Out

of the 7 witnesses, 6 of them did not bear witness to

the Plaintiff……..this Court ask the defendant to bring

his witnesses he also claimed that Tambuwal Local

Government gave him the land where he brought 11

witnesses but only 5 gave evidence who witnessed

that Alhaji Abubakar Sharubutu applied for the

farmland and he was given…….Plainti f f ’s

representative did not succeed in impeaching

witnesses 1 and 5 because witnesses numbers 1 and 5

were among the committee constituted by Tambuwal

local government. The Plaintiff’s representative failed

to mention his relationship with the defendant…….

In Islamic law a witness gives evidence on what he has full

knowledge of without any doubt.

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See Fathu Aliyu Maliki Vol. 1 Page 204 which states: - "A

witness is not competent unless he has sufficient

knowledge.......". Based on the above, I Ibrahim Abubakar

Goronyo confer title/ownership of the farmland to Alhaji

Abubakar Sharubutu which Alhaji Sodangi Gidan Bude

sued him……. I dismiss the claim of the Plaintiff because it

has no basis under Islamic Injunctions from today

4/06/2014.” The Appellant dissatisfied with the decision

appealed to Upper Sharia Court Tambuwal which set aside

the Judgment of the trial Court and confer title to the

disputed farmland to him as contained at Page 31 of the

Record of Appeal.

The Respondent, dissatisfied with the Judgment of the

Upper Sharia Court appealed to the High Court of Justice,

Sokoto Appellate division (the Court below). At the

conclusion of hearing the High Court in its appellate

jurisdiction, allowed the Appeal and set aside the Judgment

of the Upper Sharia Court Tambuwal and affirmed the

decision of the trial Court delivered on 14/06/2014 as

reflected at Pages 46-63 of the Records.

The lower Court at Page 61 of the Record of Appeal

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held: - “We agree with the learned counsel for the

Appellant that none of the witnesses called by the

Respondent testified as to how or from whom he derives his

title to the land……His claim that he was given permission

by the Ardon Sanyinna is not supported by any

evidence……The position of Islamic law as contained

inTUHFATUL HUKKAM is:-

Translation: - “The burden of proof is on he who asserts”

Let me at this stage approach the Record of Appeal in order

to determine whether the Appellant’s witnesses prove his

title to the disputed land or not. The testimonies of PW1,

PW2, PW4 and PW5 contained at Pages 4 – 7 of the Record

reads: -

PW1 “I know this land because is bordered with my own

farmland my own at North, his own at South and is the

same year we cleared the farmland together I and Sodangi

Gidan Bude and the farmland belong to Sodangi, he

cultivated the farmland after plantation. Alhaji Abubakar

sent him out of the farmland and the land continued to be

with him till date and we cleared the farmland since 2007.”

PW2: - “What I know about this farmland in dispute

between

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Alhaji Sodangi Alhaji Abubakar Sharubutu I know the place

when it was bushy area, there was no sign of anybody’s

work. So many years I passed there I saw Alhaji Abubakar

clearing one portion of plot.

While Alhaji Sodangi and Dan Buga clearing another

portion of the farmland. The next year I met the boys of

Alhaji Sodangi cultivating the land. This is all I know.”

PW4: - “What I know we requested this land and we were

given.

We divided the land into three. I took two portions, he took

one portion. We cleared the land. This is the first thing I

knew. There was a year we did not cultivate the land. The

next year we cultivated the land. This is all I know…...”

PW5: - “The place was bushy area; I was paid to clear it

which I could not clear it alone. I took other people who

helped me. We were burning the land and Alhaji Sodangi

was cultivating the land.

This is all I know.”

From the testimonies of the witnesses as reproduced

above, it is clear that none of them mentioned the original

founder of the land, how he founded it, the particulars of

the intervening

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owners through whom the Appellant claims. It is trite that

where a party has not given sufficient information as

regards the origin or ownership of the land and the line of

succession to himself, he has just laid foundation for the

failure of his claim. See ANYAFULU & ORS V. MEKA &

ORS (2014) LPELR – 22336 SC and HYACINTH

ANYANWU V. ROBERT ACHILIKE MBARA & ANOR

(1992) 5 SCNJ 90.

It is important to note that in the Claim of the Appellant

before the trial Sharia Court he said Ardo Sanyinna gave

him the permission to clear the farmland in dispute. Ardo

Sanyinna is therefore a vital witness in establishing the

claim of title of claim to the dispute farmland by the

Appellant; however he was not called by the Appellant as

one of his witnesses that testified before the trial Court.

This is fatal to the Appellant’s case as the root of his title to

the farmland is not established.

In accordance with Islamic law, in civil matters pertaining

to both movable and immovable properties, the burden of

proof is discharged upon evidence of two unimpeachable

male witnesses, or evidence of one unimpeachable male

witness

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and two or more unimpeachable female witnesses or more

witnesses with Claimant’s oath in either case. See

ABUBAKAR & ANOR. V. BASHIR (2017) LPELR –

43272 (CA) Pages 7-8 Paragraphs F-C, HADA V.

MALUMFASHI (2013) 1 SCQLR (Part 4) at Pages

24-26 Paragraphs F-B and BABA V. ARUWA (1986) 5

NWLR (Part 44) Page 774.

The issue for determination is whether the Appellant has

met the above requirements in respect of the witnesses he

presented before the trial Court or not. At Page 18 of the

Record of Appeal the trial Sharia Court held: - “Out of the 7

witnesses, 6 of them did not bear witness to the

Plaintiff…….” It is therefore clear from the Records that the

Appellant did not meet the requirement of two

unimpeachable witnesses to establish his claim of title to

the disputed farmland before the trial Sharia Court.

The lower Court was therefore right when at Page 61 of the

Record of Appeal it held that: - “none of the witnesses

called by the Respondent testified as to how or from whom

he derives his title to the land.” The argument of the

learned Plaintiff’s Counsel that the Appellant first settled

on the farmland does not hold water.

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Furthermore, the Respondent who is in possession of the

disputed land need not to prove how he comes into

possession.

See FALINGO V. FALINGO (2006) LPELR – 5984 (CA)

and the Book TABSIRATUL HUKKAM where it is stated

that: - “The person in possession shall not be asked to

explain how the thing in his possession comes into his

hands.” The Respondent who is in possession called 5

witnesses out of which the trial Court believed 4 of them as

is contained at Page 59 of the Record of Appeal. In

FURFURI V. RAWAYYAH (2008) AFWLR (Part 401)

Page 1000 at 1010 Paragraphs A-B this Court held that:

- “………. Possession…...is regarded or treated as evidence

of one witness. Therefore, the Respondents are more

favoured by the weight of evidence than the Appellant.”

The first issue is therefore resolved against the Appellant

and in favour of the Respondent. As regards the second

issue. The second issue is whether the lower Court raised

any issue suo motu without affording the parties the

opportunity to address it on that issue. It is trite that when

a judge raises an issue on his own motion which is not

before the Court he is said to raise it suo motu.

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See IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE

(2008) MSCQR Vol. 32 1074 at 1106. The argument of

the learned counsel to the Appellant is that the lower Court

made reference to the statement of the representative of

the Appellant before the trial Court in holding that the

representative of the Appellant said the Appellant does not

have any land.

The lower Court at Page 62 of the Record of Appeal held: -

“The assertion of the representative of the respondent

before the trial Court that he does not have a land is in our

view an admission against his interest and where that is the

case that evidence ought to be used against him.

SeeTABSIRATUL HUKKAM note to Fathu Aliyu Malik

Vol 2 Page 41 lines 9-17 where it is stated: -

“Admission may be against one’s interest or another

person’s interest or both. Simultaneously, if he makes

admission against his interest he would not be

allowed to retract it.”

The issue for determination is whether there was an

admission by the representative of the Appellant before the

trial Court that the farmland in dispute does not belong to

the Appellant or not.

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At Pages 16-17 of the Record of Appeal the Appellant’s

representative before the trial Court during Izaar stated: -

“…….and Alhaji Sodangi was the one that revived the land

that belongs to me in his Custody…...” It therefore follows

that the lower Court did not raise the issue suo moto but it

was evidence before the trial Court and I so hold. The

second issue is therefore resolved against the Appellant

and in favour of the Respondent.

The entire Appeal is unmeritorious and is hereby dismissed.

I affirm the decision of the High Court of Sokoto State

sitting in its Appellate jurisdiction delivered on 20th

December, 2016.

HUSSEIN MUKHTAR, J.C.A.: I have had the honour to

read, in draft, the judgment of my learned brother A. M.

Bayero, JCA just delivered I agree with the entire reasoning

therein and the conclusion that the appeal is lacking in

merit. It is accordingly dismissed.

I adopt the consequential orders made in the judgment

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

opportunity of reading the draft of the Judgment of my

learned Brother ABDULLAHI M. BAYERO, J.C.A. just

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delivered and I am in agreement with his reasoning and

conclusions in disallowing the Appeal. I am also in

agreement that the Appeal is lacking in merit and therefore

fails and it is accordingly dismissed for want of substance. I

abide by the consequential orders made by Court.

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Appearances:

M. A. Sambo, Esq. For Appellant(s)

Ibrahim Abdullahi, Esq. For Respondent(s)

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