BINTA HAKIMI v. BAWA HANTSI & ANOR
(2019)LCN/12571(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/S/176S/2017
RATIO
EVIDENCE: JUDICIAL PROOF UNDER THE ISLAMIC LAW
“Under Islamic law, the long silence of the heirs the Appellant inclusive denotes that they have agreed and accepted the sharing and distribution of the estate. They cannot be heard now to complain of any irregularity therein after their admission and having sold their respective shares to other people.
In JAURO DANBABA V. MALLAM SALE & 1 OR. (2004) AFWLR (Part 223) Page 1915 at 1921 Paragraphs E-G this Court Per Amiru Sanusi JCA held that: – ‘Judicial proof under Islamic law is established through the following procedure. In all questions relating to property, judicial proof is complete by the evidence of:-
a) Two male unimpeachable witnesses or
b) One male witness and the claimant’s oath or
c) One male witness and at least two female witnesses
d) At least two female witnesses and the claimant’s oath
e) Admission by the defendant.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
BINTA HAKIMI Appellant(s)
AND
1. BAWA HANTSI
2. MALLAM ZAKI Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment):
This is Appeal germinated from the Judgment of Sharia Court of Appeal Birnin Kebbi delivered on 2nd May, 2017 in which the Court dismissed the Appellant’s Appeal and affirmed the decision of the trial Upper Sharia Court 3 Birnin Kebbi. Aggrieved with the decision, the Notice of Appeal was filed on 25/02/2017. The Record of Appeal was deemed compiled and transmitted by an Order of this Court on 10/04/2018. The Appellant Brief of argument was filed on 20/04/2018 while that of the 1st Respondent was filed on 21/06/2018.
FACTS
This case emanated from the Upper Sharia Court of Appeal number 3 Birnin Kebbi where the Appellant sued the Respondents seeking the division and distribution of the four farmlands left behind by their deceased father Muhammad Sani. The four farms are:-
1) Gandu farm on the way to Mungadi.
2) The farm at Gungun Kara.
3) Fadama farm at Mashaya bank.
4) Sabon Sara farm.
The claim of the Appellant was read to the Respondents, the 1st Respondent Bawa Hantsi responded that the inheritance has been divided and distributed and each heir is in possession of his share.
The 2nd Respondent Mallam Zaki claimed that he does not know that the inheritance has been divided. That if the 1st Respondent insists that it has been divided he should bring his witnesses to prove it. The 1st Respondent produced one witness who testified in favour of the claim; the trial Court conducted Izaar (Allocutos) and entered Judgment in favour of the 1st Respondent by dismissing the case of the Appellant. The Appellant dissatisfied lodged an Appeal before the Sharia Court of Appeal (the lower Court). The lower Court affirmed the decision of the trial Court.
Again dissatisfied with the decision of the lower Court, the Appellant filed this Appeal. The Appellant formulated one issue for determination which the Respondent adopted in his brief of argument: –
‘Whether the lower Court was right to have dismissed the Appeal of the Appellant and affirmed the decision of the trial Court, regard being had to the sole witness presented by the 1st Respondent before the trial Court.’
Learned Appellant’s counsel submitted that it is an established principle of Islamic law that whoever asserts that the estate was distributed must prove by credible evidence and the person denying will be called upon to take an oath of rebuttal to the claim in the absence of such credible evidence. He referred to the Book of FATAHU ALIYU MALIK Vol. 2 Page 215. According to Counsel, the 1st Respondent at Page 4 of the Record of Appeal claimed that the estate was distributed and presented a single witness before the trial Court who testified that he distributed the estate of the deceased and that each of the heirs was given his share. That Binta is in possession of her share, Hauwa sold her share and Narba leased her own share. He said under Islamic law a person who distributed an estate of a deceased person cannot give evidence on the distribution he carried out because his testimony in such a situation his testimony is regarded as ‘self-evidence’ or Shahadatu Ala Fi?ilil Nafs.He referred to the Book HARSHI: COMMENTARY OF MUKHTASARUL KHALIL Vol. 6 Page 189.
Learned counsel submitted further that in Islamic law any claim apart from the claim of Zina (Adultery) which required the testimony of four credible male witnesses to prove, in other claims there must be the evidence of two male unimpeachable witnesses.
He relied on the Book BIDAYATUL MUJTAHID Vol. 2 Page 381 and HADA V. MALUMFASHI (1993) ALL NWLR Part 303 Page 17. He said neither the trial Court nor the lower Court asked the 1st Respondent to take an oath to compliment his evidence as required under Islamic law; or asked the Appellant to take the oath of rebuttal to rebut the claim of the 1st Respondent that the estate in question was divided and distributed among the heirs. Since according to him the 1st Respondent was not a credible witness. He referred to the Book TABSIRATUL HUKKAM Vol. 1 Page 273. According to him if a Judgment is not in compliance with the principles of Islamic law it will be set aside. He referred to the Book SIRAJUSSALIK Vol. 201 and urged this Court to resolve the sole issue in favour of the Appellant, allow the Appeal and set aside the Judgment of the lower Court.
In his response as contained in the Respondent’s Brief of argument, learned Respondent’s counsel argued that they conceded that the 1st Respondent called only one witness before the trial Court to prove his claim that the estate in question was divided, distributed and shared among distributed and shared among the heirs which falls short of the requirement under Islamic law of two male unimpeachable witnesses or one male and two female witnesses or more witnesses with claimant’s oath. However he submitted that the situation will be different where the heirs admitted that it was divided.
He referred to Pages 5 & 6 of the Record of Appeal and submitted that the Appellant and the 2nd Respondent have admitted before the trial Court that the estate was shared among them about 25 years ago and that some of them have even sold their shares. That their complaint now is they are not satisfied with the distribution and want another distribution to be done. According to counsel, it is trite position of Islamic law that admission is the best form of evidence. That the Prophet Muhammad (PBUH) said: – ‘Admission/confession is the best form of evidence than calling witnesses.’ He further referred to the Book Bahaja Vol. 1 Page 50, HADA V. MALUMFASHI (Supra), ALHAJI INUWA BABA V. HAJIYA GAMBO BABA (1991) 9 NWLR (Part 214) and submitted that what is admitted need no further proof. He urged this Court to resolve the sole issue in favour of the Respondent dismiss the Appeal and uphold the Judgment of the lower Court.
The claim of the Appellant before the Upper Sharia Court 3 Birnin Kebbi as reflected on Page 1 of the Record of Appeal reads: –
I, Binta Hakimi Tungar Lele am suing Bawa Hantsi and Mallam Zaki seeking the division of our late father Muhammadu Sani?s inheritance. The deceased left behind the following estate:
1) Gandu Farm on the way to Mungadi
2) Farm at Gungun Kara
3) Fadama farm at Mashaya Bank
4) Tudu at Sabon Sara farm.
5) Based on this I am suing them so that the Court will divide the inheritance as Islamic law stipulated.
From the claim of the Appellant before the trial Court she is seeking the distribution of her late father’s estate to his heirs. When the claim was read to the Respondents as reflected on Page 2 of the Records the 1st Respondent Bawa Hantsi responded as follows: –
‘I heard but the inheritance has already been divided and each is in possession of his share. They sold their own and so is my personal uncle here present Mallam Zaki, he also sold his own. Those farming presently on the farms bought the farms from the heirs. The parents also sold their shares allotted to them. As such there is nothing more to be divided now.’
The 2nd Respondent Mallam Zaki also responded to the claim as follows: I am not disputing that I sold my farm but at that time I have problem in our town, everyone hate me and no one talk to me. As such I sold all my farms and went away.
At Page 5 of the Records the Appellant admitted that the inheritance was divided but she disagrees with the division. At Izaar or allocutos stage the trial Upper Shari’a Court asked the Appellant Binta Hantsi whether she had anything to say before the case is decided and she said: –
‘I want the inheritance to be divided because the farm in my possession is the farm which my father used to lease when he was alive. I know that Zaki sold his farm 25 years ago and so does Hauwa?u. I disagree with the division, it should be merged and re divided.’
The Appellant has therefore admitted that the estate was distributed about 25 years ago but since then none of the heirs laid any complaint before a competent Court that he or she does not agree with the distribution.
Under Islamic law, the long silence of the heirs the Appellant inclusive denotes that they have agreed and accepted the sharing and distribution of the estate. They cannot be heard now to complain of any irregularity therein after their admission and having sold their respective shares to other people.
In JAURO DANBABA V. MALLAM SALE & 1 OR. (2004) AFWLR (Part 223) Page 1915 at 1921 Paragraphs E-G this Court Per Amiru Sanusi JCA held that: –
‘Judicial proof under Islamic law is established through the following procedure. In all questions relating to property, judicial proof is complete by the evidence of:-
a) Two male unimpeachable witnesses or
b) One male witness and the claimant’s oath or
c) One male witness and at least two female witnesses
d) At least two female witnesses and the claimant’s oath
e) Admission by the defendant.’
In the instant case, the heirs including the Appellant as the record of Appeal at Pages 5-6 revealed shows admitted that the estate of their deceased father was distributed to them.
This Appeal therefore lacks merit; it is not allowed and is accordingly dismissed. I affirm the Judgment of Shari?a Court of Appeal, Birnin Kebbi delivered on 2nd May, 2017.
AMINA AUDI WAMBAI, J.C.A.: I agree.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in disallowing the Appeal as completely lacking in merit. I abide by all consequential Orders made in this Appeal.
Appearances:
Nasiru Sahabi, Esq.For Appellant(s)
Ahmad A. Fingilla, Esq.For Respondent(s)
