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. & 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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