Maimuna Mohammed & Ors v. Nike Mohammed & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Sharia Court of Appeal of Kwara State sitting at Ilorin in appeal No. KWS/SCA/CV/AP/IL/14/2022 delivered on 3rd of August, 2022 wherein it set aside the earlier ruling of the Upper Area Court I, Ilorin.

The appellants as plaintiffs instituted suit No. UACI/CV/FM/968/2020, claiming inter alia:

1. An order of this honorable court directing that the sum of Twenty-Three Million, Five Hundred and Eighty-Eight Thousand Naira in dependents account at FCMB being the benefit and emblements (sic) of late Major Mohammed Arogun Adeniyis estate in accordance with Islamic law.
2. An order of this honorable court directing the defendant to surrender all personal belongings and properties of late Major Mohammed in its (sic) possession, such as Jeep CRV, Toyota 2016 model for distribution in accordance with Islamic Law.
3. An order for cost of filing and prosecution of this case.

Upon being joined in the proceedings as a co-defendant, the 2nd dependent (now the 2nd respondent) challenged the jurisdiction of the trial Upper Area Court to determine the suit contending that since the deceased was a Christian and he got married to her under the Marriage Act, his estate was heritable only by her and the children she begat for him, to the exclusion of the deceased’s aged parents and the appellants, under the Administration of Estates Law of Kwara State. In other words, the trial area court lacked jurisdiction to hear and determine the appellants case and that Islamic Law was not applicable to the estate.

In his ruling, learned trial Upper Area Court judge dismissed the objection and assumed jurisdiction to hear and determine the matter under Islamic Law.

Aggrieved with the ruling of the Upper Area Court, the defendants (now respondents) appealed to the lower court which reversed and set aside the ruling of the trial Upper Area Court at pages 250 to 251 of the record as follows:

Coming back to the present appeal, it is our firm considered view that the court below was in grave error to have held that Islamic Law governs the estate of Major Mohammed Adeniyi, who was still in a valid and subsisting marriage under the Marriage Act till his death.

The applicable law to the administration of estates of the deceased is therefore the Administration of Estates Law of Kwara State and not Islamic Personal Law over which the court below being a sole Judge court applying Islamic Personal Law has jurisdiction.

Dissatisfied with the judgment of the lower court, the appellants filed the instant appeal through a notice of appeal filed on the 19/10/2022 containing five grounds of appeal at pages 255 to 262 of the record. By an order of this court granted on the 23/11/2022, all the processes in this appeal and hearing notices were served on the respondents at their last known place of abode.

On the 28/5/2024, when the appeal came up for hearing, learned appellants counsel, Tajudeen Oladoja SAN, leading other counsels adopted and relied on the appellants brief of argument in urging the courts to allow the appeal. In spite of proof of service of the appellants brief and hearing notice on the respondents as per the previous order of this court, the respondents neither appeared nor filed any process.

Hence, the appeal was heard solely on the appellants brief of argument pursuant to order 19 rule 10(3) of the Court of Appeal Rules, 2021. In the appellants brief of argument, the following five issues were formulated for determination by this court:

1. Whether the court below was right by holding that the trial Upper Area Court lacked jurisdiction to entertain and adjudicate over the appellants suit before it.
2. Whether the court below was right by holding that Administration of Estate Law of Kwara State was the applicable law to govern the administration of estates of late Major Mohammed Adeniyi and not Islamic Law.
3. Whether Late Major Mohammed Adeniyi ceased to be a Muslim by contracting a marriage, considered by the court below as a monogamous marriage with the 2nd respondent under the Marriage Act.
4. Whether the learned Kadis of the court below were not in error when they held that the appellants suit was an abuse of court process having regard to the suit No. KWS/2/2020 before High Court of Kwara State.
5. Whether Late Major Mohammed Adeniyi was incapable of marrying the 1st and 2nd appellants under Islamic Law in view of the earlier marriage he purportedly contracted with the 2nd respondent under the Marriage Act.

A calm perusal of the above issues shows some similarities, except issue no. 4 which is quite distinct with the remaining issues. Furthermore, issue no. 2 is all encompassing and thus capable of accommodating issues Nos. 1, 3 and 5. I will therefore determine the appeal on the basis of the appellants issue Nos. 2 and 4, which I renumbered as issues nos. 1 and 2.

Before delving into the argument of counsel on the said issues, it is pertinent to restate the facts giving rise to this appeal as gathered from the record albeit, briefly. The deceased, one Major Mohammed Arogun Adeniyi, a Muslim, died on the 18th of October, 2020 at the Nigerian Army Barracks, Kainji, Niger State and was buried in accordance with Islamic injunction.

The deceased was survived by his aged parents, appellants and other heirs, left inheritable estates. While the deceased married the 1st and 2nd appellants under Islamic Law, the 2nd respondent was married to the deceased under the Marriage Act. And on his demise, the Nigerian Army paid to the 1st respondent, the deceased’s first daughter being his next of kin in the record of the Nigerian Army, a sum of N36,000,000.00 (Thirty Six Million Naira) as the deceased’s emoluments, insurance, gratuity and other entitlements. It was when it became clear that the 1st respondent was not willing to share the said money and properties of the deceased that the appellants initiated an action at the trial Upper Area Court against the 1st respondents but her mother, the 2nd respondent was later joined as co-dependent.