APPEAL NO: CA/K/229/S/96

AREAS OF LAW: APPEAL, ISLAMIC LAW, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACT:

The Plaintiff/Appellant sued the Defendant/Respondent claiming title to two farmlands, which he inherited from his father, Dodo who inherited same from his own father, Garba Afa who deforested the said lands. He claimed that the farmlands were rented to the Respondent’s father by his relative, Sarkin Fawa who he, the Appellant, consented to after consultation with the other heirs with the condition that the Respondent continues paying the annual due to his relative, which will in turn give to him. The Respondent on the other hand, denied that what the Appellant claimed was not true since he inherited the farms from his father Manu Kure in the last 73 years before he died 30 years ago and no one has ever objected that the farm belong to him until now. At the end of trial, the Area Court held that the Appellant has successfully impeached two of the 3 witnesses called by the Respondent leaving one. The court held that since 8 witnesses are more than one, the farms be affirmed to the Appellant. Dissatisfied with this judgment of the Area Court, the Respondent herein appealed to the Upper Area Court III, Birnin Kebbi. After hearing the parties and going through the records, the Upper Area Court, Brinin Kebbi, affirmed the judgment of the trial Area Court, Gwandu, after giving oath to the Appellant’s representative. Dissatisfied with this decision, the Respondent appealed before the Sharia Court of Appeal Kebbi State. After the parties deliberated and taking cognisance of the lower court’s copies of proceedings, the Sharia Court of Appeal held that the Upper Area Court III was in error to have accepted the evidence of Sarkin Fawa Sani, Malami Sarkin Fawa, Umaru Mekan as those of unimpeachable male witnesses since they are relatives of the Appellant being his co-heirs. The court further held that since the Respondent was left with one unimpeachable male witness to prove the fact of the gift of the second farm to his father, giving oath to him would complete the required evidence under Islamic law to confirm the gift to him. Consequently, the appeal was allowed in part. The farm on the road to Amore was confirmed to the Respondent after taking the oath to complete the evidence of his one witness, the court affirmed the Rogo farm to the Appellant as decided by the lower court. Dissatisfied with the said judgment, the Appellant has filed an appeal before this court.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION:

  • Whether the oath administered by the SCA to the respondent has any basis.

 

  • Whether the SCA erred when it relied upon the testimony of the only witness of the respondent who was unimpeached.

 

 

  • Whether the three witnesses of the appellant were rightly impeached under Islamic law.

 

  • Whether the appellant rightly proved his case in respect of the other farm.

RATIONES:

ISLAMIC LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

ADMISSIBILITY OF EVIDENCE- WHETHER THE EVIDENCE OF A RELATIVE IS ADMISSIBLE UNDER ISLAMIC LAW

“I need to state that this poser had come for determination and resolution by the Supreme Court in several cases to the effect that generally under Islamic law, the evidence of a near relative of a party is inadmissible if there is suspicion that the witness derives some benefit from such evidence. In the instant case, the 3 co-heirs of the plaintiff/appellant were rightly impeached by the SCA. This is also applicable to the two witnesses of the respondent who were rightly impeached on the ground of relationship and bias. Since they were interested parties, they were rightly impeached by the SCA and their evidence became inadmissible. See Sule v. Hamidu (1988) 4 NWLR (Pt.90) 516 at 522 rightly referred to in Hada v. Malumfashi (1999) 7 NWLR (Pt.303) 1 at. 17-18.” PER M. A. OKUNOLA, J.C.A.

ISLAMIC LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

BURDEN OF PROOF UNDER ISLAMIC LAW- METHOD OF DISCHARGING THE BURDEN OF PROOF UNDER ISLAMIC LAW

“On issues 1, 2, & 4 dealing with burden of proof under Islamic law, this poser had come for determination by the appellate courts in this country to the effect that proof under Islamic law is discharged by:

(a) Evidence of 2 male unimpeachable witnesses; or

(b) Evidence of one male witness and two or more female unimpeachable witnesses; or

(c) Evidence of one male or two female or more witnesses with claimant’s oath in either case.

In the instant case, the respondent in proof of his counter-claim after impeachment of two of his three male witnesses was left with one unimpeachable male witness. Consequently, before affirming the gift to him he was rightly invited by the SCA to take the complementary oath. Thus, the SCA was in order when it affirmed the gift of the land to the respondent on the basis of the evidence of his one unimpeachable witness with the complementary oath. In a similar vein, the other farm was rightly affirmed to the appellant on the basis of the evidence of 4 unimpeachable male witnesses and I so hold. See Baba v. Aruwa (1986) 5 NWLR (Pt.44) 774 p. 786 referred to in Hada v. Malumfashi (supra) p. 17 (paragraphs E-G).” PER M. A. OKUNOLA, J.C.A.

 

STATUTE REFERRED TO: