Mohammadu Baraya V. Hajiya Biba Belel & Anor (1998)

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MUNTAKA-COOMASSIE, J.C.A. 

This is an appeal by Muhammadu Baraya against the decision of the Adamawa State Sharia Court of Appeal sitting in Yola, now court below. At the Upper Area Court No. 1 Yola, herein trial court, the appellant was the defendant and the 1st respondent was then the sole plaintiff and instituted the action, which gave rise to this appeal, against the appellant seeking to inherit the estate of late Selbe Manya (who was alleged to be an emancipated slave) in accordance with the principles of Islamic law. The subject matter in dispute is a house to be distributed among the lawful heirs of a slave deceased. It was claimed by the plaintiff that the defendant now appellant sold out the house in dispute and that the sale be set aside. The crux of the matter, to my own understanding, is that the owner of the house in dispute was her father, and when the said slave died the house devolved to her by the dictate of Sharia.

Five witnesses were called by the 1st respondent, as plaintiff, the appellant also called five witnesses, The evidence of PWs 2, 3, 4 and 5 were expunged by the trial court as their evidence was said to be hearsay and inadmissible.

The same court however accepted the evidence of DWs 1, 2, 3 and 4 to the effect that before his death Selbe Manya went to his new master after the death of the 1st respondent’s father seeking to be freed from the bondage and shackles of slavery. Their evidence confirmed that the appellant obliged him and in the presence of those witnesses and other people Selbe Manya was declared a freeman.

The newly free-man then sought that two rooms from the house in dispute be given to his wife – his request was on the spot granted by the defendant who even named Selhe Manya. Ahmadu after kolanuts were distributed to people. The trial court simply preferred the evidence adduced by the defence and held that the 1st respondent, as plaintiff, failed to prove her claim and accordingly dismissed it without seriously evaluatipeal before the learned Kadis of the court below on the following statements as her grounds of appeal thung the evidence.

Aggrieved by the decision of the trial court, Hajiya Biba Oauda lodged an aps:-

1. that the respondent witnesses refused to answer her questions, 2. the trial Area Court Judge refused to believe her witnesses; and
2. the Upper Area Court Judge did not investigate the case properly.

After listening to the grounds of appeal and the records of proceedings, the court below invited, as it were, a brother to the 1st respondent and suo motu made him the 2nd respondent who, according to Islamic law, can only inherit the emancipated slave, as a male benefactor, sponsor or donor.

I wish to state that the court below in suo mutu joining the 2nd respondent, Mallam Abubakar Sali, did not state under what law, rules or regulations they joined the 2nd respondent. It was not clear whether the Sharia Court of Appeal Law, 1960 as amended allowed it to so act. It may sound strange for an appeal court to invite somebody who was not a party at the trial court to be joined in the appeal without such requests coming from any of the parties. The true position will unfold itself anon.

Again before I go further, I want to state that both decisions of the trial court, and to some extent, that of court below vis-a- vis the supposed heir to the emancipated slave is correct in law. If the emancipated slave died, his properties shall be distributed among his male heirs. If the said freed-slave has no rightful heirs then his properties or estate shall revert to his emancipator (Benefactor). The emancipator (Muwiq) is referred to in Sharia as Malilal Ni ‘ima. A female heir of the freed-slave cannot inherit him unless and until if she herself is the one who emancipated him.

See the book “Uddatul Bahith, Ahkamil Tawarith”, by Abdul-aziz Nasir Arrashid p6. In other words a patroness may inherit only from someone she herself has freed from a child of such a person or from someone such a person freed in turn. See p201 especially p202 of the Risala of Abdullah ibn abi Zaid al-Qayrawani, an annotated translation by Joseph Kenny.

The proper position of the emancipated slave is that once he was freed his money/properties belong to him. The law is that “Iza U, tiqa Tabiahu Maluhu”, meaning that whenever a slave gained back his freedom he is considered the owner of his property but not his children. The law is this, that if a slave is emancipated he became the owner of his property of his money hut never the owner of his children. It was stated in this Arabic phrase -Innal Abda Iza Utiza tabiahu Maluhu Walam Yatbauhu Waladuhu.

Another important legal issue is that only male children of emancipated slave can inherit his estate. Where an emancipated slave left property his female heirs cannot inherit him, he can only be inherited by his male heirs. A female heir can only inherit where she became, mu, tiqa i.e. emancipator or patroness herself. See Ashalul madariki, a commentary on Irshadis salik by Abubakar Al-kashnawee Volume 3 p202-p256.

That being the case, the stance taken by the Sharia Court of Appeal vis-a-vis the Islamic law is quite unassailable. I therefore endorse same. See also Sirajus Salilk Vol.2 p288: and Al- Tahqiqatul Marbiyya Fil Mabahil Alfar-biyya by Fawzan p120.

My Lords the strange aspect of this appeal is that after stating and applying the correct principles of Sharia by the court below it then ordered a junior brother to the 1st respondent herein to be joined at appeal stage. Not only that, the 2nd respondent joined has not called any witness or witnesses in proof of his supposed claim. Nonetheless the court below, i.e. Sharia Court of Appeal. Adamawa State, appeared to enter judgment in his favour. I say this because when the 2nd respondent, Mallam Abubakar Sali. confirmed to that court that they allowed the 1st respondent to represent him, the court below announced that he is entitled to inherit the deceased Selbe Abubakar. That court held thus:-