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.
20
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9) LP
ELR-46
481(
CA)
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.
21
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481(
CA)
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
22
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481(
CA)
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.
23
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481(
CA)
Appearances:
M. A. Sambo, Esq. For Appellant(s)
Ibrahim Abdullahi, Esq. For Respondent(s)
(201
9) LP
ELR-46
481(
CA)