Aliyu Salihu V. Alhaji Abdul Wasiu (2016)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Sokoto Judicial Division, (hereinafter referred to as the “Court below”) delivered on the 27th day of June, 2012. The Court below had allowed the appeal of the present appellant and set aside the judgment of the Sharia Court of Appeal, Kebbi State, delivered on 30/11/2011. The Court below, however remitted the appeal to the Chief Judge of Kebbi State for hearing before the High Court in its appellate jurisdiction.

The facts of the case that culminated into the instant appeal go thus:-

The appellant had commenced an action against the respondent at theUpper Sharia Court, Jega, Kebbi State claiming two farms and a house which were the properties of his paternal uncle, known as Abdulmuminu. It was not disputed that the same Abdulmuminu is the maternal uncle of the respondent. The appellant’s action before the Upper Sharia Court, Jega was meant to have the properties question shared between the parties because the owner – Abdulmuminu had been away from home for about sixty (60) years and there was no news that he was alive or that he has

1 children alive or at all.

In response to the appellant’s claim, the respondent contended that indeed there were three farms that belonged to Abdulmuminu – that the third farm to the two being claimed by the appellant was in possession of the appellant. The respondent, however, had no witness to establish that the third farm belonged to Abdulmuminu. But the appellant who contended that the said third farm, which was known as Bakin Gari farm, belonged to his father called two witnesses to prove his claim. However, the testimonies of one of the two witnesses called by the appellant failed to meet the requirements of Islamic law on credibility. The appellant later took oath and proceeded by ablution.

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The trial Upper Sharia Court, Jega found that since the death of Abdulmuminu had not been confirmed and since his age mates were still alive in his town, his properties would not be distributed until his death was confirmed or his age mates were no longer alive. In its judgment, the Upper Court held that the Bakin Gari farm belonged to the appellant’s father. In regard to the two farms and a house of Abdulmuminu, the Court held that a compromise had to be reached, since

2 both parties were entitled to the properties. The Court then divided the said properties into two and directed that each of the contending parties should hold one part each in trust until the return of Abdulmuminu or his descendant. But none of the parties should erect new structures on the properties, sell or give away any part as gift. The farms were to be used for farming only.

The respondent being dissatisfied with the decision of the Upper Sharia Court, Jega appealed to the Sharia Court of Appeal. Upon review of the decision of the trial Upper Sharia Court, the Sharia Court of Appeal upturned the decision and allowed the appeal the following words:

“Regarding the statement by the Lower Court that it did this based on compromise. This compromise is nor in order/ because compromise is usually made on the consensus of both parties. But if one side/party does not agree, then there is no compromise.

Based on the foregoing, we at the Sharia Court of Appeal, Kebbi State Birnin Kebbi have revoked the decision of Upper Sharia Court, Jega. The Court has held that the farms and the house should be divided into two between the parties. This is contrary to law, We

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3 charged (sic) this decision by leaving the issues in dispute to Alhaji Abdulwasiu who was initially in possession of the issues until the return of Abdulmuminu or his heirs, or when death is decided.Then the heirs will be determined and his inheritance will be divided.”

The appellant was not satisfied with the decision of the Sharia Court of Appeal, hence he appealed to the Court below and sought an Order setting aside the judgment of the Sharia Court of Appeal, Kebbi State and affirm the decision of the upper Sharia Court.

Upon hearing the appeal, the Court below considered the main issue of the jurisdiction of the Sharia Court of Appeal and came to the conclusion, inter alia, as follows:

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