Hajiya Sa?adatu Sharu V. Hajiya Umma & Anor. (2002)

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T. MUHAMMAD, J.C.A.

At the Upper Area Court No.4, Kawaji, Kano (trial court), one Alhaji Auwalu was the plaintiff. He was seeking that court’s assistance to distribute the estate of late Alhaji Sharu Balarabe, amongst his heirs.

The trial court acceded to the request and directed that all the heirs should attend the court on 25/4/85. On that date, all the heirs were present in court. The deceased, the plaintiff claimed, left behind: a widow, Hajiya Umma; six children, four males and two females.

The deceased left some movable and immovable properties including some raw cash.

One Hajiya Sa’a, who is now the appellant, claimed that she was married to the deceased. And at the time of his death, she was observing her idda (waiting period) in his favour. This was flatly denied by the first set of heirs, including the plaintiff. After taking evidence, the trial Judge found that it was necessary for the appellant to swear to an oath, that she was still married to the deceased at the time of his death. The appellant swore in the presence of the plaintiff and other heirs. However, the plaintiff and remaining coheirs claimed after the oath that at the time the deceased married the appellant, he was mentally sick. At the end, the trial Upper Area Court Judge found that the appellant was legally married to the deceased and he was physically well at the time of the marriage. The trial court went ahead and distributed the deceased’s estate amongst the heirs including the appellant. The appellant was however, dissatisfied with the distribution and appealed to the Sharia Court of Appeal Kano that one Hajiya Umma, 1st respondent, ought not to have been given share out of the deceased’s estate, as there was no subsisting marriage between her and the deceased, at the death of the deceased. The lower court exercised powers conferred upon it by Order 3 rule 7 of the Sharia Court of Appeal Rules, 1960, reviewed the record, took further evidence and at the end, confirmed the trial court’s judgment.

Aggrieved further, the appellant filed her appeal to this court.

Briefs were filed and exchanged. In his brief, learned Counsel for the appellant formulated the following issues:

“(a) Whether the trial Upper Area Court’s decision affirmed by the Sharia Court of Appeal Division One, is judicially sound and satisfactory and ought not to be set aside by the Court of Appeal, when:

(i) the appellant had established before the Sharia Court of Appeal, that some of her witnesses were

wrongly rejected and that some of the respondents’ witnesses were wrongly admitted.

(ii) the appellant had also established that if the evidence wrongly rejected were admitted, and the one

wrongly received were jettisoned, the case would have been decided in her favour by the trial Upper Area Court.

(b) Whether the Sharia Court of Appeal was right in closing its eyes, to the latent defects in the proceedings of the trial Upper Area Court, and confirming same as being proper and correct.

(c) Whether on the totality of evidence, the decision of the Upper Area Court Kano, as affirmed by the Sharia Court of Appeal Kano, was not against the weight of evidence.