CORAM

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HON. JUSTICE A. A. B. GUMEL. JUSTICE, COURT OF APPEAL

HON. JUSTICE U. A. OGAKWU. JUSTICE, COURT OF APPEAL

HON. JUSTICE M. DANJUMA. JUSTICE, COURT OF APPEAL

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PARTIES

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MALLAM MODU KIME

APPELLANTS 

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BABA GANA ALHAJI BUKAR

RESPONDENTS 

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AREA(S) OF LAW

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ISLAMIC LAW, PROPERTY LAW, EVIDENCE LAW, APPELLATE PROCEDURE, SHARIA LAW

 

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SUMMARY OF FACTS

The Appellant initiated a suit in Gwange Sharia Court I to restrain the Respondent from taking over a house consisting of three rooms in Gwange Ward, Maiduguri, claiming ownership. The Respondent contended that the house belonged to his deceased father, who had purchased it through the Appellant acting as an agent.

The Respondent claimed that the Appellant was an apprentice in his father’s shop and had used proceeds from the shop to purchase the house on behalf of the father. The trial court found for the Respondent, a decision that was affirmed by both the Upper Sharia Court II and the Borno State High Court sitting in its appellate jurisdiction.

 

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HELD

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1.The appeal was dismissed.

2.The judgment of the High Court of Justice of Borno State, delivered by Hon. Justice Kashim Zanna (CJ) and Hon. Justice A. B. Kumaliya (J) on 14th February 2020, in Suit No: BOHC/MG/CVA/10/2019 was affirmed.

3.The court found that the evidence of the Respondent significantly outweighed that of the Appellant on the imaginary scale of justice.

 

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ISSUES

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1. Whether the Borno State High Court Appeal Section was right to have affirmed the decision of the lower trial court, which the Appellant claimed was based on inadmissible evidence?

 

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RATIONES DECIDENDI

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ADMISSIBILITY OF EVIDENCE – COURT’S LIMITATIONS:

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“The law is settled that a court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence that is legally inadmissible, even with the consent of the parties.” – Per Mohammed Danjuma, JCA

 

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PREPONDERANCE OF EVIDENCE – MEANING AND APPLICATION:

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“Now, it is trite law that in civil suits, cases are won upon a preponderance of evidence. The phrase ‘preponderance of evidence’ means the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact, but by evidence that has the most convincing force—superior evidential weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” – Per Mohammed Danjuma, JCA

 

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WITNESS TESTIMONY – REQUIREMENTS UNDER ISLAMIC LAW:

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“Under Islamic Law, the admissibility of witness testimony depends to a large extent on a number of factors, which include the attributes of the witness, his status, qualifications, or competence to testify for or against either of the parties, coupled with the relevance, cogency, and potency of the evidence adduced, as well as the nature of the claim.” – Per Mohammed Danjuma, JCA

 

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EVALUATION OF EVIDENCE – WEIGHING PROCESS:

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“When the evidence of the Appellant and the Respondent is placed side by side on the imaginary scale of justice to see which side preponderates, the evidence of the Respondent weighs so heavily on the imaginary scale that it appears there is nothing on the other side.” – Per Mohammed Danjuma, JCA

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WEIGHING COMPETING EVIDENCE – JUDICIAL APPROACH:

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“In deciding whether a certain set of facts presented in evidence by one party in a civil case before a court where both parties appear is preferable to another set of facts presented by the other party, the trial judge, after summarizing all the facts, must put the two sets of facts on an imaginary scale and weigh one against the other.” – Per Mohammed Danjuma, JCA

 

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CONCURRENT FINDINGS – EFFECT ON APPELLATE INTERVENTION:

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“It is settled that concurrent findings of fact of the Sharia Court, as the trial court, and that of the Upper Sharia Court, so long as their findings are justifiable, cannot be interfered with under Sharia.” – Per Mohammed Danjuma, JCA

 

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PROOF OF OWNERSHIP – ACTS OF OWNERSHIP:

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“There was unchallenged evidence that the Respondent’s father acted consistently with ownership after purchasing the house, such as rebuilding it. There was also unchallenged evidence that the money used to buy the house was taken from the shop of the Respondent’s father.” – Per Mohammed Danjuma, JCA

 

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WITNESS CREDIBILITY – ASSESSMENT:

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“The court finally agreed that the testimonies of the Respondent’s two witnesses and the two summoned witnesses were cogent, strong, and reliable, supporting the case of the Respondent.” – Per Mohammed Danjuma, JCA

 

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TRIAL COURT’S DUTY – EVIDENCE EVALUATION:

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“The primary function of a trial court is to make findings of fact on evidence adduced before it and ascribe probative value to the same.” – Per Mohammed Danjuma, JCA

 

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COMPETING CLAIMS – BURDEN OF PROOF:

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“Where each of the contending parties is laying claim to a property, as in the instant case, each is required to call evidence in support of their claim, and the judge shall rely on the most reliable evidence.” – Per Mohammed Danjuma, JCA

 

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ACCEPTANCE OF LIABILITY – EFFECT:

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“The Appellant has accepted to vacate the house in the presence of a witness, which shows that he did not own the house.” – Per Mohammed Danjuma, JCA

 

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APPELLATE INTERVENTION – LIMITATIONS:

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“The trial court did so, and the two lower courts affirmed this; thus, this court lacks jurisdiction to interfere.” – Per Mohammed Danjuma, JCA

 

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EVIDENCE EVALUATION – JUDICIAL APPROACH:

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“The trial judge, after summarizing all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence that weighs more, accept it in preference to the other, and then apply the appropriate law to it.” – Per Mohammed Danjuma, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Evidence Act, 2011

3. Sharia Court Law of Borno State

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