Whether Court can grant reliefs not claimed

Whether Court can grant reliefs not claimed

“Let me observe firstly, and with due respect to the learned Kadis of the lower Court, that Section 7(2) of the Sharia Court of Appeal Rules, Cap. 122, Laws of Northern Nigeria, 1963 was provided in order to allow for a re-hearing or calling for further evidence where it extremely becomes imperative. Situations may arise such as oversight in calling or omitting indispensable witnesses who may tender some vital document, inadvertence on the side of the trial Court in not assessing evidence led before it, refusing to give a party a fair hearing etc. Thus in order to save time, energy and resources of the litigants, the section was enacted to, minimize such difficulties. It cannot be used to supplant the view the appeal Court would have had if it were to sit as a first instance or trial Court. The main duty of the appeal Court as the name suggests is to limit itself to appeals filed before it. Seldom does it resort to such power of review as conferred by Section 7 of the Sharia Court of Appeal Rules. After all, the trial judge, in my view, did his best. He took evidence from the plaintiffs on their claim. He also took evidence from the defendants in respect of their counterclaim. He assessed the evidence and came to the conclusion culminating in his Judgment. 

Secondly, the lower Court considered issues on ‘HAUZI’ (prescription) and sale of one of the landed properties. These issues were never raised or canvassed before the trial Court and there was no appeal on that. I find it necessary to comment though in passing that an appeal Court is bound by the record of the lower Court. It cannot embark on a jamboree of discovery. See; BASHIR V. AUDU (1999) 5 NWLR (pt. 603) 433. 

Thirdly, the lower Court called “those people who were in possession of these farms so as to know their stand and to know who gave them these farms.” These people were called presumably as witnesses. In actual fact they were drawing benefit from such landed properties as is clear from the above statement. As beneficiaries, can they be competent witnesses in their own causes under Islamic Law? I do not think so. This is because it is trite law under Sharia principles that a partner or sharer cannot be a competent witness on the matter he participates as a partner. It is said by the author of IHKAMU AL-AHKAM, while listing people who are not competent to give evidence: Translation: Also the evidence of a suspect i.e. a person whose evidence is questionable as to whether it will confer some benefit upon himself. See: Al-Mayyara Vol. 1 page 58; Al-Tasulits BAHJAH FI SHARW AL-TUHFA, Vol. 1 page 96. 
By their possession of the various lands in dispute and the MANFA’AH (usufruct) each derives from the land he holds, they can only become parties to the claim or defence thereof and not as witnesses. 

Fourthly, there was no compelling reason for the re-assessment of the evidence given by the witnesses who testified before the trial Court. What the lower Court stated cannot be a valid reason. It states inter alia: “the witnesses of the respondents Alh. Ahmadu Jakarawa their evidences (sic) were the same, while the evidence of the witnesses of the Appellant and brothers there evidences (sic) were not the same. Here if we look at the statements of the witnesses of Alh. Ahmadu Jakarawa one by one their evidence has no basis for a decision to rely on it.” I think before an appeal Court can discountenance any evidence led before a trial Court, the appeal Court has to come up with concrete and convincing reasons based on authorities which disqualify such evidence. Assessment of probative evidence is not within the province of an appeal Court. It rather rests with trial Court. The decision of the lower Court was based on the above reasons. The lower Court had no reason to upset the decision of the trial Court.

The author of the Tabsirat Al-hukkam stated: Translation:- It is permitted for the Jurists (appeal Judges) to consider the lower Court’s decision, where it is clear to them that it was wrongly based, they should overturn it. But where it was based in accordance with the laid down procedures, it should be affirmed and executed. Thus, the exercise of re-distributing the respective landed Properties already conferred on the parties by the trial Court was an exercise in futility as it was not based on any legal authority. Each of the parties made his definite claims before the trial Court. It is a known principle under Sharia that a Judge grants to a plaintiff only what he justifiably claims and proves. The author of the IHKAM AL-AHKAM states: See page 19 of the IHKAM AL-AHKAM. Again the author stated: Translation: That a Judge should rely in his Judgment on witnesses basing (his evaluation) on what he understands from (the quality) of the evidence. If the evidence is impeached he should not admit it. If it is cogent and just, he should admit it. That is the consensus (of the Jurists). See page 18 of the IHKAM AL-AHKAM: Again, a Judge has no reason to expand the claim of a plaintiff even where a witness did so in a mistaken belief. He can however accept reduction where appropriate. It has been stated in the TUHFAT – AL-HUKKAM: Translation: Reduction or increase is prohibited. Except (in situation) where a witness excels other. See page 39 of the IHKAM AL-AHKAM (supra) for details.”

JAKARAWA v. SAINI & ORS (2002) LPELR-12281(CA)

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