Jumare Maiwada Kofar Jatau Vs Inno Mohammed Mailafiya (1998)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, JSC.
Inno Muhammadu Mailafiya, the respondent in this appeal, left Dirin Daji, a town which was formerly in Sokoto State (now in Kebbi State) and came to Zariya. Inno had come out in search of her father, Muhammadu Mailafiya, who left her when she was 9 years old and her mother many years ago and had not returned. On her arrival at Zariya, Inno was taken to the house of the appellant, at Kofar Jatau Quarters. It was alleged that the house belonged to the family of one Muhammadu Mailafiya Because of the number of courts which this case went through I will refer to the respondent as Inno for ease of reference.
Inno was taken to a woman whose junior brother was called Muhammadu Mailafiya. The woman told Inno that her junior brother left home 60 years ago and nobody had reported to have seen or heard of him. The woman was the mother of the appellant Inno told the woman that Muhammadu Mailafiya was her father and that she came to Zariya in order to trace his whereabouts. She was not sure whether he was alive or dead. Inno was then acked to describe Mailafiya’s distinctive and characteristic features. Inno’s description failed to tally with the features of the junior brother of appellant’s mother who had disappeared and had not been heard of for about 60 years. Inno left for Kaduna.
Eight months later, Inno sued the appellant before Zariya Area Court No.2 and claimed for the share which she said her father Mailafiya inherited from his father Husaini. Husaini was the father of both the appellant’s mother and Muhammadu Mailafiya. When Husaini died his estate was divided between his heirs. Now, since Inno is claiming to be a daughter to Mailafiya, the junior brother of appellant’s mother, she wants her father’s share from Hasaini’s estate to be given to her. The Area Court judge directed Inno to produce witnesses in proof of her assertion that she was a daughter to Muhammadu Mailafiya.
Inno called four witnesses but none was able to convince the Area Court Judge that Inno was a daughter to Muhammadu Mailafiya who left Zariya 60 years ago.
Dissatisfied with the judgment of the Area Court, Inno appealed to the Upper Area Court, Zariya In a slipshod judgment, with no evidence to support it, the Upper Area Court Judge allowed the appeal and declared that Inno was the daughter of Muhammadu Mailafiya. He also found, but again with no evidence to support it, that Muhammadu Mailafiya was Husaini’s son and Husaini was Abdullahi’s son. The Upper Area Court Judge thereafter ordered that Inno be given her father’s share of inheritance namely, a house and farm land situated at Auguwar Fatika, Kofar Jatau, Zariya City.
The appellant, Jumare Maiwada Kofar Jatau, appealed against the decision of the Upper Area Court to the Sharia Court of Appeal, Kaduna. The Sharia Court of Appeal found that the Upper Area Court had erred in introducing into the case issue of inheritance of a house and a farm and the family tree of Muhammadu Mailafiya when those matters were never raised by Inno at the trial court. The court agreed with counsel for the appellant that three of the four witnesses who testified for Inno had not given satisfactory evidence on the contention of Inno that her father was Muhammadu Mailafiya who disappeared after leaving Zariya 60 years ago. The Sharia Court of Appeal however, agreed with the Upper Area Court that PW4 who came from Gumi had established that Muhammadu Mailafiya died at Wasagu (now in Kebbi State). Therefore, the court referred to Mukhtasar Khalil, volume 2, page 299, and directed Inno to complement the evidence of her only one witness with an oath. After the oath had been administered to her the Sharia Court of Appeal dismissed the appeal.
Next, the appellant appealed to the Sharia Division of the Court of Appeal on 4 grounds of appeal. Learned counsel for the appellant, JB Daudu, SAN, raised two issues from those grounds, for the determination of the appeal. The two issues are as follows:
“1. Whether there was sufficient evidence on the printed record of proceedings upon which the Sharia Court of Appeal could have reached a decision that the respondent was the daughter of the missing person, Muhammadu Mailafiya?
- What is the standard of proof where the estate of a missing person (Mafqud) is the subject matter of a claim by a person hitherto unknown to the missing persons family?”
The issues formulated by the learned counsel for the respondent were similar to the issues reproduced above. The Court of Appeal, however, instead of considering the appendix on the points raised in the issues, embarked on elucidation of several principles of Islamic law. Marry points not relevant to issues before the court were considered. At the end Okunola, JCA., who wrote the lead judgment, with which Coomassie and Tanko Muhamnuad, JCA., concurred, dismissed the appeal and made the following orders:
“1. That Inno is Muhamnadu Mailafiya’s daughter
- That Muhammadu Mailafiya is Hussaini’s son, and
- That Hussaini is Abduilahi’s son
- That the respondent, Inno, be given her father’s share of inheritance, namely; a house and farmland situated and lying at Unguwan Fatika, Kofar Jatau, Zaria City.”+
Dissatisfied with the decision of the Court of Appeal the appellant finally came to this court on four grounds of appeal. The two issues formulated from the grounds of appeal by the learned counsel for the appellant were adopted by the learned counsel for the respondent in the respondent’s brief. The issues are:
“1. Whether the Court of Appeal was correct in its conclusion that there was sufficient evidence on the printed record upon which the Sharia Court of Appeal could have reached a decision that the respondent was the daughter of Muhammadu Mailafiya (A missing person) and that she was entitled to inherit his estate, which had become ripe for inheritance?
- Whether the Court of Appeal was right in granting the respondent a judicial decree that the missing Muhammadu Mailafiya was dead and whether the court could grant reliefs not ought by the repondent ab initio?”
The cace of Inno before the trial court is that she is the daughter of one Muhammadu Mailafiya who left Kofar Jatau Quarters, Zariya, about 60 years ago. That the said Muhammadu Mailafiya had inherited an estate from his late father, Hussaini. That a declaration is sought from the court that Inno is entitled to inherit the estate. What Inno has to prove, therefore, is that she is the daughter of Muhammadu Mailafiya who left Zariya 60 years ago and secondly, she must establish that Muhammadu Mailafiya is dead or could be presumed dead. In Fathul Aliyil Malik Vol. 2 at page 190 the learned author says follows:
whoever claims ownership in fee simple of a property in the possession of another and alleges that it is part of the estate he has inherited, the person in possession of the estate shall not be asked to explain how he came about it until the claimant has established the death of his deceased predecessor from whom he claims to have inherited the estate and proves also how he becomes an heir of the said deceased predecessor in respect of the said estate.” See Muhammed Ahmed v. Dalhatu Jibrin and Yan (1982) 1 Sh LRN page 68.
Thus Inno’s tasks are two fold. She must prove that she is the daughter of Muhammadu Mailafiya who disappeared after leaving Zariya about 60 years ago. Secondly, she must establish that the said Mailafiya is dead or has been missing and his whereabouts are unknown for a period within which a person of his age would be presumed dead. Under Islamic Law Muhammadu Mailafiya is referred to as “mafqud” – a missing person. A “mafqud” has been described in Al Fiqh Al-Islami Wa Adillatuh by Dr. Wahbak Al-Zuhayly, Vol. 5 at page 784 as a person who has been absent from his place of abode for a long period of time, that information of his whereabouts or whether he is dead or alive is unknown.
The learned justice of the Court of Appeal, Okunola, JCA., devoted 6 pages in his judgment on the issue of “mafqud”. He said so much on the issue that one would think that one is reading a thesis on the subject instead of a judgment. Where the learned justice reported however, is correct on the principles of Islamic law regarding a “mafqud” although most of it is irrelevant to the issues formulated from the grounds of appeal. The Court of Appeal was also in error to decree that Muhammadu Mailafiya was dead since no such relief was sought by Inno or her counsel. See Paul v. George (1959) NSCC, Vol. 1 165; 1959 SCNLR 510.
In trying to prove that Inno is Muhammadu Mailafiya’s daughter she called four witnesses. The Sharia Court of Appeal Kaduna found only the testimony of P.W.4, Muhmmmadu Dangunta from Gumi, relevant to the claim of Inno that she is the daughter of Muhammadu Mailafiya. On appeal to the Court of Appeal, the learned justice of the Court of Appeal, Okunola JCA., found that the evidence of P.W.3 had also supported the claim of Inno that she was the daughter of Mailafiya. It is pertinent for me therefore to analyse the evidence of P.W.3 and P.W.4 in order to see if what they told the trial Area Court had supported the claim of Inno. P.W3 said as follows:
“What I am going to say is based on the fact that I knew her father Muhammadu Mailafiya because we grew up together from our childhood to adulthood up to the time we marry (sic). In fact he is my friend. He left Zaria to Kaduna during the reign of Sarkin Zauzau Ibrahim. From Kaduna we never heard any news of his whereabouts until recently this girl, the plaintiff, came claiming that she is his daughter. When I looked at her carefully I observed a lot of resemblance between her and Muhammadu Mailafiya, her father. I was the one who took her to Alhaji Jumare’s house but in the house they all said that they do not trust her. This is all l know.
What can be understood, from the testimony reproduced above, is that P.W.3 knew Muhammadu Mailafiya and they were friends. He knew when Muhammadu Mailafiya left Kaduna and had not been heard of since. This evidence is suspect, because P.W.3 gave his age as 70 years at the time he gave evidence. He told the trial court that he grew up with Mailafiya up to the tune they both married. It is all agreed that Muhammadu Mailafiya left Zariya and headed for Kaduna about 60 years before the area court opened this case for hearing. If you take out 60 years from 70 years of P.W.3 he would he left with only 10 years. He could not marry at the age of 10 years. This makes the evidence of PW3 unreliable. Again, the evidence of P.W.3 linked Inno and Muhammadu Mailafiya only on what be said he observed in her features which resembled the physical features of Mailafiya. This is not the way to establish affinity between two persons under Islamic Law. A child’s paternity or affinity is not considered through physical resemblance but by consideration of the period within which the child is born after consummation of the marriage of his parents. The consensus of opinion in the Maliki School is that if a child is born within 6 months of consummation of the marriage the child is affiliated to the husband. See Badaruz Zaujaini page 229 to 231.
The second witness whose testimony the Court of Appeal accepted is P.W.4. His evidence before the Area Court reads:
“I know that I and Muhammadu lived in the same area but I do not know where he came from even though he used to say be hailed from Zaria within Kofar Jatau quarters. When he got a wife in our area she declined to succumb at first on the ground that she did not want to marry a stranger. We persuaded Rahama and the marriage took place. Rahama gave birth to Inno, the plaintiff, when she was 2 years old he migrated together with his wife and daughter and settled at Dirin Daji. From Dirin Daji he moved to Wasagu Village but after sometimes no news could be traced of his presence there. It is said that his wife died before him. He died about 17 years ago but we cannot forget the birth of his daughter. What follows then was her coming back to our town seeking for a man to testify that Muhammadu is her father.”
It is quite clear that P.W.4 did not know Muhammadu Mailafiya who left Zariya 60 years ago and became a “mafqud”. He knew somebody called Muhammadu who married a local girl in Gumi. The local girl, Rahama, gave birth to Inno. He could not link Inno with Muhammad Mailafiya who left Zariya for Kaduna and was not heard of since. In order to establish that Inno is the daughter of Muhammadu Mailafiya evidence must be given to show that Muhammadu Mailafiya who left Zariya and disappeared after leaving Kaduna is the same person who married Rahama, the mother of Inno, in Gumi town. P.W.4 did not give such evidence. He only identified Inno having been born through a marriage between Rahama and one stranger in Gumi town called Muhammadu who told him that he was from Kofar Jatau, Zariya.
Under Islamic Law, unlike English Law, parties are not competent witnesses in their respective claims; hence their statements in court would not be regarded as evidence, but something akin to statement of claim or defence in the High Court. See Abdullahi Mogaji Mafoluku v. Usman Akanbi Alamu (1985) Sh. LRN 105. Thus the statement made by Inno at the Area Court when asked to explain here case is not evidence. It must be supported by the testimony of two male unimpeachable witnesses or one male and an oath, or one male and two female witnesses and an oath. Yaminul Qada’i (oath of judgment) which was administered to Inno at the Sharia Court of Appeal and which (oath taking) was affirmed by the lower court, could only be relevant after the right to claim the deceased person’s property is proved. In Mayyara Vol. 1, Commentary on Tuhfa, at page 98, the learned author defined Yaminul Qada’i thus:
“An oath proffered to a claimant over a deceased person’s property in protection of such property since the deceased will not be available to dispute and rebut the claim. It is also proffered where the claim involves the property of a missing person or a minor.”
Inno cannot be invited to take the oath of Yaminul Qada’i since she had not proved her claim that she is the daughter of Muhammadu Mailafya of Kolar Jatau, Zariya. The appellant is therefore successful in the two issues raised by his counsel, JB. Daudu, SAN, for the determination of this appeal.
In the final result, this appeal is allowed. The judgment of the Sharia Division of the Court of Appeal Kaduna which affirmed the judgments of the Sharia Court of Appeal Kaduna and the Upper Area Court, Zariya is hereby set aside. The judgments of the Upper Area Court, Zariya and Sharia Court of Appeal, Kaduna are also set aside. The judgment of triad Area Court No. 2 Zariya City which dismissed the claim of Inno is hereby restored. Because of the family nature of this case I shall be making no order as to costs.
SC.215/1994