(2018) LPELR-44129(CA)

Transcription

1 RAKUMI v. BAYAWA CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON WEDNESDAY, 28TH MARCH, 2018 Suit No: CA/S/117S/2013 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MUSA MAI RAKUMI - Appellant(s) ALH. ISAH NA'IBI BAYAWA And RATIO DECIDENDI - Respondent(s)

2 1. EVIDENCE - VISIT TO THE LOCUS IN QUO: Effect of a visit to the locus in quo conducted in the absence of the judge handling a case "With all due respect a staff of Court, not being a judge or Kadi handling the case in respect of which a visit to the locus has to be performed, cannot perform such judicial function. I want to say without mincing words that an inspection of locus in quo by any person other than a judge is wrong by any procedure. The Court of Appeal per Tobi, J.C.A. (as he then was) in OLANUDU V. TEMIYE (supra) at p. 39 para A stated thus; "An inspection of locus in quo without a judge is a nullity. It is like another person who is not a judge is giving a decision in the matter in a court room." I am of the firm view therefore that the inspection of the locus in quo by a non-judicial staff was a nullity and cannot validly be used or relied upon by the trial judge as it was neither evidence adduced at the trial nor expert opinion. The reliance on the report of a supporting staff by the trial Court in its judicial pronouncement renders the decision perverse, which the lower Court should have upturned."per MUKHTAR, J.C.A. (Pp , Paras. D-B) - read in context

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4 HUSSEIN MUKHTAR, J.C.A.(Delivering the Leading Judgment): This appeal is brought against the judgment of the Sharia Court of Appeal, Kebbi State sitting in Argungu delivered on the 27th day of September 2004 in appeal No SCA/KBS/ARG/07/2004. The Appellant s claim against the Respondent at the trial Upper Sharia Court is as follows; "I, Musa Mairakumi Bayawa is suing one Alhaji Isah Naibi Bayawa because we had trial before the Sharia Court of Appeal Argungu Zone. The Court confirmed to me my farm but they refused to vacate the farm and destroyed my crops and rice in the FADAMA farm. This is why I am suing them before this honourable Court so that the Court will render my right from him." At the close of trial, the Upper Sharia Court held that the Appellant (the plaintiff) had failed to prove his claim of trespass against the Respondent and dismissed appellant's case. The judgment was upheld by the Kebbi State Sharia Court of Appeal hence this appeal seeking that the concurrent decisions of the trial and the Court below be upturned and order a re-trial of the suit. It is on record that the same parties

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6 herein had a previous suit between them that went through the appellate process to the Sharia Court of Appeal concerning the same farmland. The subject matter of the suit was the determination of the question as to who owned the farmland and if both parties had a share in the land, to determine the extent of each parties boundaries. The Sharia Court of Appeal found that both had a share in the farmland and divided the land between both parties and issued each of them with a certificate of ownership. After the division of the land and issuance of certificates, the Appellant discovered that the Respondent herein had encroached his boundary and was in occupation of a portion of the land that by virtue of the certificate of ownership, formed part of the Appellant's land. The Respondent refused to vacate the land despite demands by the Appellant to vacate. The Appellant filed a claim against the Respondent at the Upper Sharia Court, Argungu, Kebbi State praying the Court to order the respondent to vacate the Appellant's portion of the land. The respondent denied the claim, stating that all the portion of land under his occupation belonged to him 2

7 and also tendered his certificate of ownership before the Court. The Court thereafter sent its staff, one Kabiru Abdullahi, to visit the locus and measure each party's portion with a view to determining whether there was indeed any encroachment on the Appellant's land. The said Kabiru Abdullahi reported that there was no where that the Respondent had encroached on the appellant's land. Relying on the evidence/opinion of the staff, Kabiru Abdullahi, the Upper Sharia Court in Case No. USU/AR/CV 117/2004 held that the Appellant had failed to prove his claim and dismissed it. Dissatisfied with the said judgment, the Appellant appealed to the Sharia Court of Appeal, Kebbi State which affirmed the judgment of the Upper Sharia Court. The Appellant has now appealed before this Court on the following two grounds: i) The trial Court misdirected itself when it delegated its duty of inspecting the locus in quo to a staff of the Court and having full knowledge that its said staff is not an expert in land surveying, accepted and relied on his testimony on the subject of land surveying. ii) The trial Court erred in law when it failed to administer the oath of rebuttal on the Respondent 3

8 after it had held that the Appellant had failed to prove his claim. The Appellant submits, from the twin grounds of appeal, the following issues for determination in this appeal: i) Whether the inspection of the locus in quo by the Court staff who is not an expert instead of the Court itself and the reliance on his testimony thereof is not a nullity which ought to have prompted the Sharia Court of Appeal to set aside the judgments of the lower Courts. ii) Whether the trial Court having held that the plaintiff had not proven his claim, adhered to the laid down procedure under Islamic law applicable to such circumstances, before dismissing the Appellant's claim. The Respondent, however, raised a lone issue for determination as follows; Whether or not in the circumstance of the case the Trial Court correctly resolved the issue before it? (This issue covers the Appellant's Grounds of Appeal 1 & 2 respectively) It is observed that the neither of the two issues raised by the Appellants is related to any ground of appeal. The Respondent s sole issue distilled from grounds 1 and 2 is 4

9 therefore adopted for the determination of this appeal. It was argued for the Appellant that the trial Judge or Kadi has the responsibility at every trial to visit the locus in quo himself and not a duty that may be delegated to a Court clerk who is not a judicial officer. The responsibility to visit the locus in quo is one that requires the diligence and competence of a Judge, who shall review evidence adduced before him. In OLANUDU V. TEMIYE (2002) 2 NWLR (PT. 750) PAGE 37 C - F, The Court of Appeal per Ibiyeye, J.C.A. stated thus; "... Secondly, he delegated his judicial function by commissioning the acting president of Igbekobo customary Court to inspect the imagined locus in quo and utilising the report therefrom in his judgment. This approach, to say the least, with due regard, was utter dereliction of duties of hearing, seeing and observing during trial by the learned trial judge.. I am therefore of the strong opinion that to sustain such decision will amount to perpetuating miscarriage of justice. I shall accordingly not uphold a decision that is patently perverse." It was submitted for the Appellant that the proper 5

10 procedure on a visit to the locus in quo in a land dispute, is for the Court to move to the site with all the parties and allow the parties to adduce evidence and explain the nature and circumstances of their respective cases. A registrar, Court clerk or messenger cannot perform this judicial function as was done in the instant case. The Supreme Court in OKACHI AZUOKWU V. TASIE NWOKANMA & CUSTOMARY COURT ISIOKPO (2005) 11 NWLR (PT. 937) AT PAGE 550 PARAGRAPH-H stated per Kalgo J.S.C. as follows; "It is pertinent to note that the procedure followed by the customary Court at the locus in quo was quite proper when it brought with it all parties and allowed the appellant as plaintiff to explain the nature and circumstances of the land in dispute... " It was conceded for the Appellant that the responsibility to prove his claims by credible evidence and if it is a civil case, titling the balance of probabilities in his favour is on the party who approaches the Court for adjudication. Where therefore, the plaintiff has failed to prove his case by credible evidence, his claims must fail. He argued that under Islamic Law, the procedure 6

11 requires that the plaintiff must prove his case by good evidence. Where the Court holds that this has not been done, the Court must call upon the defendant to take an oath of rebuttal. Reliance was placed on a prophetic tradition in this respect, which states thus: "Evidence is incumbent upon the claimant and oath is upon the defendant." See also; Bulugu- Maramee by A Ahmad (published by Darl- Fikr, Beirut, Lebanon. 1997) at page 751 "The onus of proof is on the shoulder of the claimant and oath is on he who denies the claim." It was submitted for the Appellant that the administration of the oath of rebuttal is the proper procedure where the plaintiff fails to adduce sufficient evidence to establish his claim. The Court of Appeal in the case of DANJA V. DANJA (1998) 5 NWLR (PT. 550) PG. 478, PARAS. C - D stated thus; "Where a person claiming property which is in possession of another fails to prove his claim by calling witnesses, the defendant who denies the claim will be called upon to take the oath of rebuttal to clear himself. However, where the defendant or person in possession declines to take the oath of rebuttal after the 7

12 implication of such refusal has been read to him, the oath will be transferred to the plaintiff. If the plaintiff takes the oath, judgment will be entered in his favour." It was submitted for the Appellant that the administration of the oath of rebuttal is a tradition of the holy prophet thus it is not within the Court's discretion to waive compliance with this procedure. It was submitted for the Appellant that the failure to administer the oath of rebuttal on the Respondent if the Appellant had failed to prove his claim, is not a mere irregularity but a fundamental contravention of the Islamic law procedures. The learned counsel for the Appellant urged the Court to resolve the issue in favour of the Appellant and allow the appeal. The learned counsel for the respondent argued that the Plaintiff now the Appellant has the onus of proving his claim as required by Islamic Law. This he must do by calling in support of his claim, the requisite witnesses, failing which his claim must fail. See the case ofmanu v. Mohammad (1997) 11 NWLR (Part 528) Page 323 at 331, where the Court of Appeal following the decision of the Supreme Court in Usman 8

13 v. Kareem (1994) LPELR - SC 152/1993 held as follows: "As regards the onus of proof under Islamic law, the plaintiff's case can only be proved by evidence of- (a) two unimpeachable male witnesses; or (b) an impeachable male or two or more unimpeachable female witnesses; or (c) a male witness or two or more female witnesses plus the plaintiff's complimentary oath." It was submitted for the Respondent that the Appellant had failed woefully in his responsibility to call witnesses who will lead evidence as required by Islamic Law in substantiating his claim. The claim must fail and was rightly so held by the trial Court and affirmed by the Sharia Court of Appeal. It was further submitted for the Respondent that Section 256 (1) (c) of the Evidence Act 2011 excludes the lower Court from the application and/or compliance with the strict rules of the Evidence Act and as it particularly pertains to visit to locus in quo. It was submitted further that the trial Court was not bound to follow the procedure of the Evidence Act on the visit to locus in quo. That it suffices to say that the Trial Court, in this regard and in the light of 9

14 the Appellant failing woefully to call witnesses as required under Islamic Law, reserved the discretionary power to do what is just in order to reach the ends of justice in the circumstance, hence the Court invoked its discretion to send an Officer of the Court along with the Parties to inspect the farm land in question and observe same vis-avis the Certificate of Ownership. The Respondent urged the Court to resolve the issue against the Appellant and dismiss the appeal with substantial cost and affirm the judgment of the lower Court accordingly. With all due respect a staff of Court, not being a judge or Kadi handling the case in respect of which a visit to the locus has to be performed, cannot perform such judicial function. I want to say without mincing words that an inspection of locus in quo by any person other than a judge is wrong by any procedure. The Court of Appeal per Tobi, J.C.A. (as he then was) in OLANUDU V. TEMIYE (supra) at p. 39 para A stated thus; "An inspection of locus in quo without a judge is a nullity. It is like another person who is not a judge is giving a decision in the matter in a court room." I am of the 10

15 firm view therefore that the inspection of the locus in quo by a non-judicial staff was a nullity and cannot validly be used or relied upon by the trial judge as it was neither evidence adduced at the trial nor expert opinion. The reliance on the report of a supporting staff by the trial Court in its judicial pronouncement renders the decision perverse, which the lower Court should have upturned. The foregoing appraisal and analysis have focused my vision to resolving the issue for determination in favour of the Appellant and I hereby so resolve. The appeal has merit and is hereby allowed. The judgment of the Court below delivered on 27th September 2004 in appeal No SCA/KBS/ARG/07/2004 is accordingly set aside. In its stead, the case is hereby referred to the Hon. Grand Kadi of Kebbi State for retrial by another Upper Sharia Judge. The parties shall bear their respective costs. MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in draft the judgment of my learned brother, Hussein Mukhtar, JCA. I agree with his reasoning and conclusions in allowing the appeal. The issues raised in this appeal have been comprehensively 11

16 addressed and I hereby adopt same as mine. I too allow the appeal and abide by the consequential orders. FREDERICK OZIAKPONO OHO, J.C.A.: I had the 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 conclusion in allowing the Appeal. I abide by all consequential orders made in this Appeal. 12

17 Appearances: Olukayode Adeluola, Esq. For Appellant(s) J. A. Akinlola, Esq. For Respondent(s)