Importance of Izar under the Islamic Law

CASE TITLE: GANA v. MODU (2023) LPELR-60361(CA)

JUDGMENT DATE: 16TH MAY, 2023

PRACTICE AREA: ISLAMIC LAW

LEAD JUDGMENT: MOHAMMED BABA IDRIS, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Islamic law and procedure.

FACTS:

This is an appeal against the judgment of the High Court of Yobe State, sitting in its appellate jurisdiction at Damaturu.

The Respondent sued the Appellant before the Upper Sharia Court, Geidam, over farmland and after hearing the matter, a declaratory judgment was entered in favour of the Appellant.

Dissatisfied with the judgment of the trial Court, the Respondent appealed to the High Court. After hearing the appeal, the Court set aside the trial Court’s decision and, in its place, conferred the title of the farmland to the Respondent. Dissatisfied with the judgment of the High Court, the Appellant appealed to the Court of Appeal.

The Respondent, on their own part, filed their brief of argument and notice of preliminary objection, seeking the following orders:

1. An order of this Honourable Court dismissing by declaring that the Appellant’s Notice and Grounds of Appeal filed on the 6th day of December 2021 without complying with Order 8 Rule 11(1) of the Court of Appeal Rules 2021 is invalid and incompetent.

2. An order of this Honourable Court to wit, declaring that the formulation, filing and arguing of ground number one (1) in the Appellant’s Notice and Grounds of Appeal on the ground of facts and raising objection for the first time on appeal without leave is incompetent and invalid.

3. An order of this Honourable Court declaring that issues number 2, 3, 4 and 5 in the Appellant Brief are not based or distilled from the “Notice and Grounds of Appeal” upon which order for leave to file this present appeal was obtained.

4. An for such further or other order as this Honourable Court might deem fit to make in the circumstances.

ISSUES:

The issues submitted for determination in the preliminary objection were:

1. Whether the Appellants’ Notice and Grounds of Appeal filed on the 6th day of December 2021 without the leave of either the lower Court or this Honourable Court on the ground of facts/objection for the first time on appeal on the 13th day of December 2021 without complying with the mandatory provisions of Order 8 Rule 11(1) of the Court of Appeal Rules 2021 as to cost for the due prosecution of the Appeal is competent?

2. Whether issues number 2, 3, 4 and 5 of the Appellant’s brief are based and distilled from the respective grounds number 2, 3, 4 and 5 of the Appellant Notice and Grounds of Appeal?

The Court resolved the following issues:

(a) Whether the Court below was right to have assumed that the Appellant did not counter-claim the claim before the trial Court, thereby admitting the claim against him (the Appellant).

(b) Whether the Court below was right to have held that the trial Court judge did not apply the Islamic law principles of an Izar either during the proceeding or before judgment was delivered.

(c) Whether the Court below was right to have assumed that the trial judge misapplied the principle of Hauzi?

DECISION/HELD:

The preliminary objection succeeded in part and the appeal was dismissed. Going further to consider the appeal on its merits, the Court of Appeal dismissed the appeal.

RATIOS:

• APPEAL – RECORD OF APPEAL: Duty of an appellant under Order 8 Rule 11(1) of Court of Appeal Rules 2021 after transmission of record of appeal; effect of non-compliance
• APPEAL – ISSUE(S) FOR DETERMINATION: Effect of issue(s) for determination not distilled from or related to ground(s) of appeal
• ISLAMIC LAW AND PROCEDURE – ISLAMIC LAW: Position of the law on valid counterclaim as a prerequisite for conferring title to land under Sharia law
• ISLAMIC LAW AND PROCEDURE – ISLAMIC LAW: Importance of Izar under the Islamic law; effect of judgment delivered without Izar