Alhaji Saka Opobiyi & Anor V. Layiwola Muniru (2011)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

This appeal is against the judgment of the Court of Appeal; Ilorin delivered on the 11th day of July, 2002.

The background facts of this case which appears to have a remarkable history are that members of the family of one Tukur Gogo Olowo of Ile Panu, Masingba, Ilorin who died in 1924 approached the court as far back as 1979 for the distribution of his estate in accordance with Islamic Law of inheritance. There is no record of this case again until the plaintiffs, now appellants before this court, commenced an action on the 12th of October 1994 at the Upper Area Court No. 2 Oloje, Ilorin on this same subject matter. The action followed an order of retrial de novo made by the Kwara State Shariah Court of Appeal, Ilorin in its appeal session on the 22nd of August 1990.

The present parties both as plaintiffs/appellants and defendant/respondent came into the action by way of substitution for the grandsons of Tukur from his daughter Saratu as at 1994 and granddaughter of Tukur from his only son, Abudu-Salami. The current parties are in effect great grandsons of Tukur as appellants and great, great grandson of late Tukur as respondent; as all the original parties died in the course of litigation. It was in evidence that Tukur died in 1924 leaving daughters. There is additional evidence that he had a second wife one Awero who had a son, Usman for him. It is however not certain whether Tukur gave his second wife and her only son their inheritance before he died. The first female child of Tukur, Saratu died in 1923 – she predeceased her father Aishat, another daughter died in 1938, followed by Salamat who died in 1943. The son of Tukur, Abdulsalami died in 1960. Vide page 8 of the Record. Amina I, the wife of Tukur died in 1943. Vide page 9 of the Record Saratu’s death before her father deprived her of having any share in her father’s property. Tukur was reported to have landed properties and shares.

In the considered judgment of the Upper Area Court it was held that –

1. As the 1st and 2nd plaintiffs in this case are not sure when Sarat died and her father Tukur, both the deceased cannot inherit each other. See Siraju Salik Vol. 11 page 238 last line. It is not certain who died first.
2. The plaintiff failed to fulfill the remaining two guidelines prescribed by Sharia Court of Appeal, Kwara State, Ilorin i.e. (a) Certainty of the estate and (b) The date(s) of any heir who died before or after the deceased Tukur.
3. That plaintiffs were within the categories who can inherit directly from Tukur’s property except Sarat but when Sarat and Tukur died was not known.
4. That plaintiffs could not succeed in this case unless one Garuba is joined as Magaji of Ile Panu Masingba, Ilorin and as sons of Tukur in male side of Tukur’s children.

That plaintiff failed totally to establish his case as prescribed by law of inheritance also that Hadith say he who assert must prove plaintiff’s claim was dismissed based on the principle of the Golden Rule of Sharia. That plaintiffs/appellants being aggrieved by the judgment, appealed to the Shariah Court of Appeal, Ilorin.

The appeal was heard and in the Judgment delivered on the 3rd of October 1996, the court held as follows:-

We did not remit the matter to the trial court as an investigative panel which we therefore await its reply. The trial court is competent by the law establishing it to take a full decision which could be contested.

The trial court is to narrow the guideline to the following:-

a. Determine Abdulsalami, the son of Tukur acquired the title over the period of land claimed by the appellants to be the estate of Tukur in dispute excluding what had been given to Zainab.

b. Determine whether Sarah: predeceased or survived her father whose estate is in dispute with a view to determining whether she qualified or not as Tukurs heir.

c. Make a sketch of whatever is resolved to be the estate of Tukur.

d. Distribute the estate accordingly following the principles of estate distribution in Islamic Law.”

Appealed succeeds substantially.