(2018) LPELR-45267(CA)

Transcription

1 LIYAFA v. KYAUTA CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON WEDNESDAY, 11TH JULY, 2018 Suit No: CA/S/41S/2017 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO KABIRU MOHAMMED LIYAFA Before Their Lordships: Between And HAJIYA KYAUTA - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s)

2 1. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Principles governing formulation of issues for determination in an appeal "Also issues for determination should be precise and devoid of any complexity and ambiguity for easy comprehension of the matters to be adjudicated upon. The purpose of formulating issues for determination is merely to narrow down the issue raised in the ground of appeal. See LABIYI V ANRETIOLA (1992) 8 NWLR (Prt 258) 138 and IKUFORIJI V F.R.N (2018) 6 NWLR (Prt 1614) 142. The law is also settled that an issue for determination must be derived from and must be related to a valid ground of appeal properly concluded with proper particulars where the particulars are not part of the ground of appeal itself. However, the inelegance of an issue does not distract from the substance of what should be the concern of the appellate Court in discharging justice. See CHIADI V AGGO (2018) 2 NWLR (Prt 1603) 175 at 231."Per SHUAIBU, J.C.A. (P. 4, Paras. A-E) - read in context 2. ISLAMIC LAW AND PROCEDURE - BURDEN OF PROOF: Whether he who asserts must prove "It is an established principle of Islamic law that he who asserts must prove and this can be done by calling at least two unimpeachable male witnesses or one male witness or two female witnesses to support claimant's oath. See GARBA V DOGON YARO (1991) 1 NWLR (Prt 165) 103 at 109, GULMA V BAHAGO (1993) 1 NWLR (Prt 272) 766 at 774 and MINTAR V KORI (1989) 1 NWLR (Prt 100) 716."Per SHUAIBU, J.C.A. (P. 6, Paras. A-C) - read in context

3 3. ISLAMIC LAW AND PROCEDURE - ISLAMIC LAW: Importance of Al-Izar in proceedings under Islamic Law; Effect of failure to apply same at the appropriate time "The main contention in the present case is that the trial Court had proceeded to enter judgment against the appellant without conducting Al- Izar. It is incumbent on the judge either at trial or on appeal that before judgment is finally delivered, the judge must give the parties final opportunity to state and produce evidence in discharging the burden of proof. At the end of the party's case the Court shall ask them whether they have anything more to say before the Court pronounces its judgment. This is what is called Al-Izar, something similar to allocutus in English Criminal justice which must be conducted before an accused person in convicted. In MEDINAT & ANOR V ADAM (2013) 1 SQLR (Prt IV) 152 at 162, it was held that where a judgment is pronounced without Al-Izar, it will be set aside on appeal. Also in the unreported appeal NO. CA/1C/1426/86, IBRAHIM V ISYAKU & 2 ORS Per Wali JCA (as he then was) said: - "... It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court." Finally, in WANGARA V ISLAMIYAR KARA (2006) 3 SCR (Prt1) 168 PER Muntaka- Coomassie (of blessed memory) said: - "Before giving judgment a judge must establish the exhortation of any possible defence (Al-Izar) by two unimpeachable witnesses. That is the chosen course." From the foregoing, the rationale behind al-izar is to hear both sides akin, to the principle of audi alteran partem in common law."per SHUAIBU, J.C.A. (Pp. 6-7, Paras. C-F) - read in context

4 4. ISLAMIC LAW AND PROCEDURE - ADMISSION UNDER SHARIA: Effect of a free admission under the Sharia Law "It is also pertinent to state here that the judgment being appealed against is a judgment based on admission (Iqrar) where none of the parties led evidence. Under Islamic law, a free admission made by a mature and same person against his interest in favour of another is binding and enforceable against the maker. See WALI V IBRAHIM (1997) 9 NWLR (Prt 519) 160 at , ISSA V ALABI ( ) 1 SLRN 177. In HADA V MALUNFASHI (2013) 1 SQLR (Prt IV) 1 at 20 the Supreme Court relying on the authority in FATHUL ALIYYA- MALIK, VOl I at pages held that: "Where an admission (its wording and context) is clear, it is binding on the court to act upon it."per SHUAIBU, J.C.A. (Pp. 8-9, Paras. C-A) - read in context

5 MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The respondent sued the appellant before the Upper Sharia Court 1, Samaru, Gusau claiming the sum of N6, 300, 000 (Six Million, Three Hundred Thousand Naira) being debt the appellant is owing as a result of the materials he bought from her and refused to pay. When the claim was read to the appellant he admitted indebtness through his counsel in the following words: - I met my client and he was not in dispute with the claim of the plaintiff against him which was to the tune of N6, 300, 000 with the promise that he will pay the sum of N2, 000, 000 within the next 4 weeks. By then, we shall meet with the plaintiff in order to reach an agreement as to how he will settled the remaining balance bearing in mind my client was a civil servant at the same time it was one of his friend that gave him his house to sale in order to settle this N2, 000, 000. After several adjournments and upon appellant s failure to make good his promise of paying the sum of N2, 000, 000, 1

6 learned respondent s counsel moved the Court to enter judgment against the appellant based on his admission. Consequently; the trial Court entered judgment in favour of the respondent and directed the appellant to pay the entire judgment sum within two (2) weeks. Dissatisfied, the appellant appealed to the lower Court which affirmed the said judgment. Still not satisfied appellant lodged this appeal through a notice of appeal on 8/11/2016 containing two grounds of appeal. The said two grounds of appeal (shorn of particulars) are reproduced hereunder as follows: - GROUND ONE The kadis of the Sharia Court of Appeal, Gusau erred in affirming the judgment of the trial Upper Sharia Court which was contrary to the known principle of Izar. GROUND TWO The judgment of the Sharia Court of Appeal, Gusau delivered on 18th October, 2016 in this matter is unreasonable, unwarranted and is against the principle of natural justice and contrary to the principle of Maliki Islamic Law. From the above, learned appellant s counsel Pwahomdi L. M. Esq. nominated two issues for the determination of the appeal as follows: - 2

7 1. Whether having regards to the claims of the respondent as constituted before the trial Court and the purported admission made by the appellant s counsel before the trial Court, the Sharia Court Appeal, Gusau was right to have affirmed the judgment of the Upper Sharia Court 1, Gusau. (Distilled from ground 1). 2. Whether the judgment of the Sharia Court of Appeal, Gusau is not against the principles of Maliki School of law? Learned counsel for the respondent Musa R. D. Labaran, Esq. adopt the two issues with slight modification thus: - 1. Whether having regard to the claim of the respondent as constituted before the trial Court and the admission made by the appellant s counsel before the trial Court, the Sharia Court of Appeal, Gusau was right to have affirmed the judgment of the Upper Sharia Court, Gusau. 2. Whether the judgment of the Court of Appeal, Gusau was in compliance with the principle of natural justice and in accordance with the principles of Maliki School of Islamic Law. In civil appeal the omnibus ground is that the judgment is against the weight of evidence while in criminal appeal it is 3

8 the verdict that is unreasonable or cannot be supported having regard to the evidence. Also issues for determination should be precise and devoid of any complexity and ambiguity for easy comprehension of the matters to be adjudicated upon. The purpose of formulating issues for determination is merely to narrow down the issue raised in the ground of appeal. See LABIYI V ANRETIOLA (1992) 8 NWLR (Prt 258) 138 and IKUFORIJI V F.R.N (2018) 6 NWLR (Prt 1614) 142. The law is also settled that an issue for determination must be derived from and must be related to a valid ground of appeal properly concluded with proper particulars where the particulars are not part of the ground of appeal itself. However, the inelegance of an issue does not distract from the substance of what should be the concern of the appellate Court in discharging justice. See CHIADI V AGGO (2018) 2 NWLR (Prt 1603) 175 at 231. Having said much and upon careful consideration of the two set of issues, the respondent s first issue is wide enough to accommodate all the silent points raised in the appeal. I shall therefore determine this appeal in the light 4

9 of the respondent s issue No.1. Arguing the lone issue, learned appellant s counsel contended that the onus is on the plaintiff to prove his claim as there is no onus cast on the defendant to disprove the claim. He referred to A.D.F.P.I. V N.I.W.A (2012) 8 WRN 67 at 68. He submitted that a witness could testify even if the witness was not requested to testify to the admission. Still in argument, learned counsel submitted that failure to conduct Al Izar renders the judgment a nullity. He referred to MUHAMMADU V SECRETARY & ANOR (2013) SQLR (Prt 11) He submitted further that it is mandatory for Courts to give parties or their counsel an opportunity to make final address after the conclusion of evidence and where same was denied, such amount to a denial of fair hearing. On his part, learned counsel for the respondent argued that free admission made by a matured and sane person against his interest in favour of another is binding and enforceable against the maker. He referred to FATHUL ALIYAYAH MALIK and Bidayatul Mujtahid. He urged the Court to dismiss the appeal as a party is not allowed to 5

10 approbate and reprobate at the same time. It is an established principle of Islamic law that he who asserts must prove and this can be done by calling at least two unimpeachable male witnesses or one male witness or two female witnesses to support claimant s oath. See GARBA V DOGON YARO (1991) 1 NWLR (Prt 165) 103 at 109, GULMA V BAHAGO (1993) 1 NWLR (Prt 272) 766 at 774 and MINTAR V KORI (1989) 1 NWLR (Prt 100) 716. The main contention in the present case is that the trial Court had proceeded to enter judgment against the appellant without conducting Al- Izar. It is incumbent on the judge either at trial or on appeal that before judgment is finally delivered, the judge must give the parties final opportunity to state and produce evidence in discharging the burden of proof. At the end of the party s case the Court shall ask them whether they have anything more to say before the Court pronounces its judgment. This is what is called Al-Izar, something similar to allocutus in English Criminal justice which must be conducted before an accused person in convicted. 6

11 In MEDINAT & ANOR V ADAM (2013) 1 SQLR (Prt IV) 152 at 162, it was held that where a judgment is pronounced without Al-Izar, it will be set aside on appeal. Also in the unreported appeal NO. CA/1C/1426/86, IBRAHIM V ISYAKU & 2 ORS Per Wali JCA (as he then was) said: - "... It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court. Finally, in WANGARA V ISLAMIYAR KARA (2006) 3 SCR (Prt1) 168 PER Muntaka- Coomassie (of blessed memory) said: - Before giving judgment a judge must establish the exhortation of any possible defence (Al-Izar) by two unimpeachable witnesses. That is the chosen course. From the foregoing, the rationale behind al-izar is to hear both sides akin, to the principle of audi alterem partem in common law. The next germane question is whether parties to this case were heard by the trial 7

12 Court before pronouncing its judgment, the subject matter of this appeal? Upon considering the totality of the facts as disclosed in the record of appeal, parties and their respective counsel were given equal opportunity to ventilate their case. At page 11 of the record of appeal; appellant s counsel was specifically asked if he has anything to tell the Court after the appellant s counsel had moved the Court to enter judgment based on the appellant s admission. It is also pertinent to state here that the judgment being appealed against is a judgment based on admission (Iqrar) where none of the parties led evidence. Under Islamic law, a free admission made by a mature and same person against his interest in favour of another is binding and enforceable against the maker. See WALI V IBRAHIM (1997) 9 NWLR (Prt 519) 160 at , ISSA V ALABI ( ) 1 SLRN 177. In HADA V MALUNFASHI (2013) 1 SQLR (Prt IV) 1 at 20 the Supreme Court relying on the authority in FATHUL ALIYYA- MALIK, VOl I at pages held that: Where an admission (its wording and context) 8

13 is clear, it is binding on the court to act upon it. The lone issue is resolved in favour of the respondent. On the whole, I have come to irresistible conclusion that the appeal is devoid of merit and it is accordingly dismissed. The respondent is awarded N50, 000 costs against the appellant. HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the lead judgment just delivered by my learned brother. Muhammed Lawal Shuaibu, JCA. I agree, for the reasons ably advanced in the lead judgment, that the appeal is bereft of substance. The appeal is accordingly dismissed by me. 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 MUHAMMED L. SHUAIBU, JCA just delivered and I am in agreement with his reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto. 9

14 Appearances: L. M. Pwahomdi For Appellant(s) Nuradeen Sa'adu Barnawa (HB for M. D. Labaran) For Respondent(s)