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Danbaba v. Sale

JAURO DANBABA

V

MALLAM SALE

ALHAJI ALI

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

AMIRU SANUSI, JCA (Read the Lead Judgment)

IKECHI FRANCIS OGBUAGU, JCA

CA/J/7/97

WEDNESDAY, 10TH MARCH, 2004

EQUITY - Islamic principle of ‘Hauzi’ - Application of under English law of equity

EVIDENCE - Islamic law - Judicial proof under - Procedure for establishing

EVIDENCE - Islamic law - Relevance of proof therein

ISLAMIC LAW AND PROCEDURE - Judicial proof under Islamic law

-  Procedure for establishing

ISLAMIC LAW AND PROCEDURE - ‘Hauzi’ - Provision of

ISLAMIC LAW AND PROCEDURE - ‘Hauzi’ - Application of under the English law of equity

ISLAMIC LAW AND PROCEDURE - Relevance of proof therein

Issue:

Whether the High Court was right in Islamic law when it applied the “Hauzi” principle without considering the exceptions thereto.

Fact:

Plaintiff/appellant brought an action against the respondents at the Fune Upper Area Court for repossession of a compound and a farmland which the appellant claimed he gave to the respondents’ father on loan on the arrangement and understanding that anytime he (respondents’ father) was leaving or moving out of the area he could return the land to the plaintiff.

The respondents’ case is that their father went to the head of Mashiyo and requested for a place at Ngelzarma to settle. The head then told him that farm lands are never problems. He permitted them to take any area in Ngelzarma and settle. It was after 9 years of settlement in that area that they moved to this area which Danbaba now claimed to be his.

There was evidence that respondents’ father died 13 years before the action was commenced and that his descendants have lived therein for about 34 years and developed the place which has about 25 houses built therein without any let or hindrance by or from anybody including the appellant who had full knowledge of the development.

The trial Area Court dismissed the claim of the appellant on the ground that plaintiff was indolent for not making his claim timeously as prescribed by the Islamic law doctrine of “Hauzi” (prescription) which is ten years. On appeal to the High Court of Yobe State the appeal was dismissed for being devoid of any merit.

Aggrieved by the decision of the High Court appellant appealed to the Court of Appeal.