Alhaji Jiddun V. Abba Abuna & Anor (2000)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
The facts of this case are not seriously in dispute between the contestants. The deceased, Alhaji Ramat and Hajiya Kwayisu were husband and wife living in the matrimonial residence provided by the husband. Apart from Hajiya Kwayisu, Alhaji Ramat had two other wives namely, Ya Adama and one other. They were both living with him in the same house.
One night, a gang of armed robbers attacked and broke into the residence of Alhaji Ramat causing serious injuries to Alhaji Ramat and one of his wives Hajiya Kwayisu, resulting in their death.
Following the death of Alhaji Ramat and Hajiya Kwayisu, the guardians of Hajiya Kwayisu and the relations of Alhaji Ramat, in consultation with some Islamic scholars learned in sharia, shared the estate of Alhaji Ramat among his surviving heirs. They gave 1/8th of the estate to the wives, Hajiya Kwayisu inclusive. Hajiya Kwayisu was allotted a house with six rooms. Alhaji Juddum, the 1st defendant in this case was among the relations of Alhaji Ramat that witnessed the sharing of the estate. It was after the sharing that Alhaji Juddum denied the plaintiffs, Alhaji Abba Abuna Goni and Goni Adam, the share of Hajiya Kwayisu whom they claim to be their mother. Part of the plaintiff’s claim reads-
“The house with six rooms was said to be my mother’s share but thereafter Alhaji Juddum denied us the house saying that my mother had predeceased her husband by death. We therefore disagreed to that. If he is claiming that my mother had pre-deceased her husband by death, let him produce his witnesses and confirm to that effect before the court.”
In answer to the preceding statement by the plaintiff, the 1st defendant replied-
“I heard, she had preceded her husband by death and that was why we said she had no share.”
The trial Upper Area Court then proceeded as follows:
“Ct/Alh. Juddum:
Are you aware that the deceased’s relatives had given three houses as eighth portion of inheritance to the deceased’s wives
Answer:
Yes, I know.
Ct/Alh. Juddum:
Since the relatives of the deceased, Alhaji Ramat and other members of the public had apportioned three houses as “thumun” [i.e. 1/8th] to the three wives, what right do you have to prevent somebody her share
Answer:
This is left for the court to decide.
Ct/Alh. Juddum:
Have you got witness(es) who could testify that she had preceded her husband by death
Answer:
Yes, I have two witnesses.”
The defendant, who had now the burden to prove that Hajiya Kwayisu pre-deceased Alhaji Ramat called Ya Adama.Alhaji Abbas, who was one of the two surviving wives of Alhaji Ramat, and Hajiya Hamra Shuwa, a neighbour’s wife. None of them testified in support of the defendant’s allegation.
The trial Upper Area Court after considering the evidence, stated:
“At this juncture, the court told Alhaji Juddum that his two witnesses did not confirm his claim and that the deceased’s husband’s relatives had mentioned before this court that they had picked out three houses as the one eighth portion each of the house wives inheritance and that whether he has another witness, he said he has none.”
The trial court then affirmed the settlement reached by the representatives of the deceased persons in which the house with six rooms was given to Hajiya Kwayisu as her share from 1/8th of the estate of her deceased’s husband.
Aggrieved by the decision of the trial Upper Area Court, Alhaji Juddum, the 1st defendant, appealed to the Sharia Court of Appeal. The Sharia Court of Appeal, after considering the record of proceedings and oral submissions by the parties to the appeal, observed that-
“In view of that, Hajiya Adama Alhaji Abbas and Hajiya Hamra Shuwa had not confirmed that anything before the Upper Area Court 1, regarding who preceded the other by death among Alhaji Ramat and his wife Hajiya Kwayisu. The Bornu Upper Area Court 1 had agreed that Hajiya Adama Abbas and Hajiya Hamra Shuwa had confirmed anything before it but unfortunately, the Upper Area Court 1 had included late Hajiya Kwayisu among the heirs of late Alhaji Ramat and this is not proper under the Sharia Law since it was not established who preceded who by death.”
The Sharia Court of Appeal cited lhkamul Ahkam page 348, as its authority for the preceding statement. And having said so, it allowed the appeal set aside the judgment of the trial Upper Area Court 1 and directed as follows:-
“In view of that, we order the lower court to receive back the eighth portion of inheritance which it had given to Hajiya Kwayisu and give it to the heirs of Alhaji Ramat.”
The plaintiffs, Abba Abuna Goni and Goni Adam appealed to the Court of Appeal, Jos Division, against the judgment and order of the Sharia Court of Appeal, Bornu.
Before the Court of Appeal, both parties were represented by counsel who filed and exchanged briefs of argument for and on behalf of their clients. In the Court of Appeal, learned counsel adopted their respective briefs of argument and offered no additional oral submissions.
The Court of Appeal painstakingly considered the appeal and in its unanimous decision delivered by Tanko Muhammad JCA, allowed the appeal and concluded:
“In the circumstances therefore, I have no other alternative than to declare the decision of the Borno State Sharia Court of Appeal a nullity and confirm the decision of the trial Upper Area Court. Position of the parties therefore, must be in line with this decision, revert to the status quo ante. The respondent has no right to keep on withholding the share of the appellants as distributed among the heirs by the prepositous relation as nothing has been established to rebut such a decision.”
The 1st defendant has now appealed to this court against the Court of Appeal judgment.
Before I go into the appeal, I wish to observe that the Court of Appeal wrongly declared the Sharia Court of Appeal judgment a nullity when it manifestly allowed the appeal as I shall later on in this judgment show. There is nothing to show that the Sharia Court of Appeal was incompetent when it heard the appeal. Its decision could be wrong but certainly not a nullity. If it were so, the proper order the Court of Appeal should have made would be for a fresh hearing of the appeal before a competent tribunal instead of allowing the appeal at the tail end of its judgment, and no such order for a fresh hearing was made.
In compliance with rules of this court, the plaintiffs as appellants and the 1st defendant as respondent filed and exchanged briefs of argument through their respective learned counsels. Henceforth, the plaintiffs and the 1st defendant will be referred to in this judgment as respondents and appellant respectively.
In his brief of argument, learned counsel for the appellant, J.S. Kamalu – Din Esq of Mohammed Kaloma Ali & Co. formulated four issues for determination to wit:
“1. Was the creation of missing link, vide failure to administer oath on the plaintiff/appellant the mistake of the trial Upper Area Court 1
- If the answer to the above is in the affirmative, is it then right to visit a party in a suit with such a mistake
- Should this matter be remitted to the Sharia Court of Appeal for the missing link to be provided in order to judge in the plaintiff’s favour
- If the answer equally is in the affirmative, was the Court of Appeal right in overturning the decision of the Sharia Court of Appeal and affirming that of the trial Upper Area Court 1, Maiduguri
Learned counsel for the respondents, K.T. Turaki Esq of K.T. Turaki & Co. raised the following issue in his brief-
“Whether the decision of the Court of Appeal, Jos Division restoring parties to status quo ante, was right in Islamic Sharia, regard being had to the appellant’s claim and special peculiarities of this case relating to the common belief of the parties to this case and justifiability of the appellant’s claim.”
On the day the appeal came up for hearing, neither the appellant nor his counsel appeared in court. His appeal was taken as argued on his brief as provided by the rules of this court. Learned counsel for the respondents appeared and adopted the brief he had already filed. He also made oral submission elaborating some points in his brief.
Having regard to the judgment of the Court of Appeal and the grounds of appeal filed, in my view, the only issue validly arising in this appeal is whether the Court of Appeal was right to restore the judgment of the trial Upper Area Court 1, Maiduguri, regard being had to the evidence adduced by the appellant.
As correctly stated by the Court of Appeal, under the Sharia procedural law ,it is not always necessary that a litigant who complains first before the court shall always be the plaintiff. It is the Judge, based on the dictates of the facts of the case, that decides who is to be the plaintiff. The Judge has to determine, from what is most reasonable and in conformity with the normal state of things, which of the two parties is to be cited as the defendant. See lhkamul-Ahkam [Commentary on Tuhfatulul- Hukkam] page 8; Ruxton on Maliki Law, pages 281 – 282 and Jawahirullklil vol. II [Commentary on Mukhtasar-el-Khalill page 225].
The respondent’s complaint before the trial Upper Area Court is not that who between Alhaji Ramat and Hajiya Kwayisu pre-deceased the other but that the appellant denied the heirs of Hajiya Kwayisu the share from the estate of her deceased husband, to wit: a house consisting of six rooms which also formed part of 1/8th of Alhaji Ramat’s estate given to his wives that survived him. It was the appellant that introduced the issue that Hajiya Kwayisu pre-deceased Alhaji Ramat. Based on this new element introduced by the appellant, the learned trial Judge, and rightly too in accordance with the Sharia Law, in my view asked him to prove the allegation. None of the two witnesses called by him gave evidence in his favour. His first witness, Ya Adama Alhaji Abbas, one of the surviving wives of Alhaji Ramat testified as follows:
“I was together with my husband. When the robbers came to my husband, ordered me to put my golds into the box and asked me not to go out. As for him on going out, they fell on him and beat him, when I went out I saw my rival and she was shot at her thigh. She called me and said that I should tie her thigh with her head-tie, I tied it for her and went to my husband’s place when I heard that he too was killed, that is all I know.”
the 2nd witness Hajiya Hamra Shuwa, a wife’s neighbour of Alhaji Ramat, stated thus in her evidence-
“When the robbers came to their house, I went out. I saw the thigh of Hajiya Alhaji Ramat’ s wife was tied with a head-tie. I was taking care of her when I heard that my husband was beaten. From there, I became confused. In view of that, I cannot exactly say whether Hajiya or that Alhaji Ramat was first to die because it was the following day that I heard that Hajiya had died.”
This case involves a claim in the share of the estate of Alhaji Ramat. It can be estimated in money’s worth. The appellant had failed to prove his claim by the evidence of two unimpeachable male witnesses or one unimpeachable witness on with the appellant’s complimentary oath, or evidence of two or more unimpeachable female witnesses with his complimentary oath. See page 240 vol. II, Jawahirul- Ikil [commentary on Mukhtasar-el Khalil] where the author stated the law as follows:
“au sabqiyyatihi”
“ai mautu ahadil fariq aini awiz zauj aini ala mautil akhar, fa tuthbitus sabqiyyati bi adlin wamra’ataini au ahadihima ma’a yaminin.”
Meaning:
or who preceded by death: that is who died first between the two, or who between the two spouses died first; in such a situation, the claim as to who preceded by death shall be established by the evidence of one male unimpeachable witness plus that of two female unimpeachable witnesses or by the evidence of one of the two [a male witness or two female witnesses] with the claimant’s complimentary oath.”
See also pages 35 – 36 Ihkamul-Ahkam [commentary on Tukhfalul-Hukkam]; suit No. CNK/81/84: Abdullahi Mogaji Mafolaku v. Usman Akanbi Ita Alamu (1961-1989) Sharia Law Reports of Nigeria vol. 1 105 at 107;page 188 Hashiyatud Dasuki vol. 4 [Commentary on Mukhlasar el-Khalil] and page 203 Khirshi vol. 4 [Commentary on Mukhtasar el-Khalil].
The Court of Appeal is therefore perfectly right when Tanko Mohammed JCA in the lead judgment said-
“I am of the view that the procedure adopted by the trial Upper Area Court was the right one as it is trite that under Islamic Law, a Judge has the capacity and competence to determine the plaintiff in a given case notwithstanding which of the parties brought the case to the court.”
The respondent’s claim before the trial Upper Area Court is more or less seeking for enforcement of the mutual settlement of the sharing of the estate of late Alhaji Ramat, reached by the parties interested in it. The Sharia Court of Appeal, Bornu was wrong in its approach to the facts of the case and the issue introduced by the appellant in it. The death of the two spouses was not in question nor in doubt. It was the appellant that complained that Hajiya Kwayisu pre-deceased her husband. His complaint was clear and unambiguous that Hajiya Kwayisu predeceased Alhaji Ramat, and this he was not able to substantiate. This misapprehension of the issue and the facts by the Sharia Court of Appeal, Bornu led it into serious error of setting aside the decision of the trial Upper Area Court. The Court of Appeal was partly right when it stated in the lead judgment that
“In this case, it must be proved that one of the spouses pre-deceased the other so that the survivor could inherit no matter how short his survival. The Sharia Court of Appeal Maiduguri, after having considered the evidence led before the trial Upper Area Court not meritorious, ought to have dismissed the appeal before it. By dismissing the appeal, it ought not to have pronounced a different decision, an unsubstantiated one which would alter the position of the parties prior to their appearance before the trial Upper Area Court.
In the circumstances, I have no other alternative than to confirm the decision of the trial Upper Area Court: Position of the parties therefore must in line with this decision, revert to the status quo ante. The respondent has no right to keep on withholding the share of the appellants as distributed among the heirs by the prepositus relation as nothing has been established to rebut such a decision.
The appeal is allowed.”
In Islamic Law or Sharia, where a person who is declared by the court to be the plaintiff fails to prove his case in a claim for money or which can be estimated in money’s worth, the defendant shall be called upon to take the oath rebutting the plaintiff’s claim. See lhkamul-Ahkam [Commentary on Tukhfatul- Hukkam] page 9 where the law is stated thus-
“The defendant shall subscribe to oath of rebuttal when the plaintiff fails to prove his complaint by evidence of witnesses.”
See also Ruxton on Maliki Law paragraph 1600, page 302 where it is stated
“1600. If the plaintiff cannot furnish complete judicial proof, the defendant will make oath in order to remain in possession.”
In the present case, the appellant has failed to substantiate his allegation as required by law; the respondents as heirs of Hajiya Kwayisu shall subscribe to the oath of rebuttal of the appellant’s claim. If they decline to do so, the appellant will be asked to take oath affirming his assertion. If both decline to take the oath, the court will dismiss the appellant’s claim and enforce the settlement reached by the parties. See pages 34 and 36 of Ihkamul-Ahkam [Commentary on Tukhfal], particularly on page 36 where the procedural law is stated thus-
If the defendant refuses to take the oath of rebuttal of plaintiff’s claim, the plaintiff shall be asked to take oath of confirmation of his claim. Where both refuse to take the oath, the court shall dismiss the plaintiff’s claim.
Where a Muslim dies, his heirs are permitted by law to appoint a person learned in Islamic law to share his estate among them according to such law, and if subsequently the matter is taken before a court of law, that court will enforce the sharing, provided it conforms with the law. See Ashalul Madarik Fi lrshadis Salik vol. 3 page 209 wherein the law is thus stated-
“It is permitted to appoint an arbitrator and to enforce what he decides.”
The appeal fails and it is dismissed. The judgment and orders of the Court of Appeal is affirmed subject to the taking of oath of rebuttal by the respondents. N10,000.00 costs is awarded to the respondents against the appellant.
SC.135/1994