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BABBA v. GANJARMA (2022)

BABBA v. GANJARMA

(2022)LCN/16035(CA)

In the Court of Appeal

(KANO JUDICIAL DIVISION)

On Monday, May 23, 2022

CA/K/02/S/2011

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

GARBA HUSSAINI TSAMIYA BABBA APPELANT(S)

And

RAKIYA GANJARMA RESPONDENT(S)

 

RATIO:

CONDITIONS WHICH A PLAINTIFF MUST SATISFY WHERE DISTRIBUTION OF A DECEASED’S ESTATE COMES UP IN A COURT OF LAW

Fundamentally, Islamic Law of inheritance is predicated upon the command of Almighty Allah (SWA) in the Holy Quran and prophetic traditions. In every situation, where distribution of a deceased’s estate comes up in a Court of law, there are some hurdles or conditions which a plaintiff must satisfy. The law always insists that the plaintiff must present two witnesses to prove:
a. The death of the deceased;
b. The surviving heirs to the deceased;
c. Whether the deceased owed any debt; and
d. Whether the deceased made a will.
See YARI v. MIKAILA (1986) 5 NWLR (PT. 46) 106; HAMZA v. LAWAN & ANOR. (2006) LPELR 7657; SHEHU & ANOR. v. SHEHU (2017) LPELR 44596; TIJJANI & ORS v. YABI (2017) LPELR 44606 and IBRAHIM v. GIRKO (2021) LPELR 54953 -PER ABUBAKAR MU’AZU LAMIDO, J.C.A. 

THE DUTY OF THE COURT WHEN AN ERROR IS FOUND IN ANY CASE

Now, one of the first point raised before this Court is that the Court below was wrong to affirm the decision of the trial Court who did not invite all the heirs before delivering its judgment. This point was not taken at the trial Court but raised for the first time at the Court below. Notwithstanding that fact, in Islamic Law, a judge is not restricted to the submission of parties before him. When wherever he finds an error in any case, he is obliged to correct that error. See SIDI v. SHA’ABAN (1992) 4 NWLR (PT. 223) 113; NASI & ORS v. S. HARUNA (2006) 2 SLR 154; ISA v. ISA (2006) 3 SLR 217 and ADAMU v. ABDULRAHMAN (2020) LPELR 51580. -PER ABUBAKAR MU’AZU LAMIDO, J.C.A. 

PRINCIPLES GOVERNING FAILURE OF THE COURT TO INVITE ALL THE HEIRS FOR THE PURPOSE OF DISTRIBUTING AN ESTATE

Can the failure of the trial Court to invite all the heirs for the purposes of distribution of estate be fatal as to render the judgment of the trial Court voidable or liable to be set aside? Often, situations abound that an heir institute an action for the distribution of an estate of a deceased person. The other heirs may not show interest or that, they are living in a far place. The law is that it is preferable that the judge should endeavor to bring all the heirs to Court before the distribution of an estate and where it is practically impossible, a judge is allowed to distribute the estate and give the claimant his share leaving the shares of the other heirs who can claim same whenever they surface. -PER ABUBAKAR MU’AZU LAMIDO, J.C.A. 

In HAMZA v. LAWAN & ANOR. (Supra) AT 15; Muhammad, JCA (as then was) quoting a passage from a book titled Mueenul Hukkami fi ma Yataraddadu Baina Alkhasmaini Minal Ahkami P. 230 stated that:-
“Where a man dies and leaves surviving heirs, if one of them claims his father’s death and makes a claim against a house which is in another’s possession whereas the house was owned by his father which he left behind to him and other relatives such as so and so, if the person in possession denies the claim and the claimant establishes with two witnesses the death of his father, the number of heirs, and that the said house was owned by his father who died and the estate devolved on the heirs and none of the heirs was present in Court except the claimant, the judge will admit the evidence and will confer title of the house on the deceased and will proceed to distribute the house accordingly giving the claimant his due share… But as for the shares to other heirs, these will be left in the hands of the claimant so that any time anyone of them surfaces, he shall take his own share from him. (The Judge) shall not compel the repeat of evidence to establish that the estate was owned by his father”.
See also Irshad Al-salik Commentary on Askari Vol. 1 & 2 PP 384 – 385and Ihkamul Ahkam P. 209.
Thus, failure to call all the heirs of late Abdullahi the grandfather of the parties to this appeal before the distribution of the estate is not fatal to the case and the decision of the Court below affirming the trial Court’s decision is unassailable. -PER ABUBAKAR MU’AZU LAMIDO, J.C.A. 

PRINCIPLES GOVERNING A FREE AND VOLUNTARY ADMISSION MADE BY A MATURED AND SANE PERSON

An admission under Islamic Law is a binding declaration by its maker in favour of another. It must be clear and devoid of any ambiguity. See Fathul Aliyu Malik Vol. PP 30 – 40 and Bidayatul Mijtahid Vol. II P. 352. Also in Ruxton on Maliki Law at PP 281 – 282, it is stated that:-
“The judge will not enter judgment in favour of any of the litigants until after the claimant has stated his case.
The judge will then ask the defendant to respond to it. If he (the defendant) admits the claim, then there is no problem, but if he denies, the plaintiff shall be called upon to adduce evidence in proof of his claim”.

Thus, it is firmly established that a free and voluntary admission made by a matured and sane person is binding and enforceable against the maker. Where an admission satisfies all the requirements of an Iqrar, it is the best evidence and in a face of a valid admission, a claimant need not adduce evidence in proof of his claim. Facts admitted need no further proof. See HADA v. MALUMFASHI (1993) LPELR 1348; HAMZA v. LAWAL & ANOR (Supra); KUR v. FANNAMI (2010) LPELR 4411 and SANI v. IBRAHIM (2017) LPELR 45121. Therefore, having admitted to the claim, the Appellant cannot turn round to say that the farmlands did not form part of the deceased’s estate. Moreover, the Appellant abandoned his claim at the trial Court. See P. 43 of the record of appeal. -PER ABUBAKAR MU’AZU LAMIDO, J.C.A. 

MATTERS UNDER WHICH ISLAMIC LAW HEARSAY EVIDENCE IS ADMISSIBLE IN EVIDENCE

The law is that in Islamic Law hearsay evidence is inadmissible except in matters of pregnancy, marriage, fosterage menstruation, inheritance, birth, state of being a Muslim or apostasy. See GABARI v. BABANUWA (2017) 5 SQLR (PT. III) 571 and KAKALE & ANOR v. NOMA (2021) LPELR 55093.

ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sharia Court of Appeal, Kano delivered on 21st May, 2009. The Appellant herein was the Defendant at the trial Court and the Respondent was the plaintiff. Upon an order of retrial from the Upper Sharia Court of Appeal, Kano the trial Court Upper Sharia Court, Shahuchi commenced hearing of the suit upon the plaintiff/Respondent’s plaint note which is as follows:-
“I am pleading for the Court’s mercy and assistance for the recovery of my farmlands situated at Tsamiya Babba, Gezawa Local Government from Alhaji Usaini Tsamiya including the claim of one house built in one of the farmlands. She also added that the properties she is seeking from the Defendant belonged to their late Grandfather and his estate was not shared. Her father and the Defendant’s father are full brothers”.

​The Defendant/Appellant denied the claim and stated that the two farmland and one house claimed by the plaintiff/Respondent do not belong to their grandfather Abdullahi. He later stated that the estate was distributed through a settlement and the plaintiff/Respondent was given her share which she sold to the Defendant/Appellant at the cost of N60,000.00.

The trial Court asked the plaintiff/Respondent to bring witnesses who will testify as to the death of Abdullahi, his heirs and the estate he left behind. Two witnesses were brought who testified in line with the plaintiff/Respondent’s claim. The Defendant/Appellant was also asked to bring witnesses to prove his claim. He presented three witnesses to the Court. At the end of the hearing, the trial Court accepted the evidence of plaintiff/Respondent’s witnesses and rejected the evidence adduced by the Defendant/Appellant. Judgment was entered in favour of the plaintiff/Respondent.

Dissatisfied with the decision of the trial Court, the Defendant/Appellant appealed to the Sharia Court of Appeal, Kano who affirmed the decision of the trial Court. Still dissatisfied with the decision of the Court below, he appealed to this Court by filing a notice of appeal containing three grounds of appeal.

In line with the practice and procedure of this Court the Appellant filed his brief of argument on 08/02/2021 and raised three issues for determination. The issues are:-
1. Whether the learned Kadis of the lower Court were in error when they affirmed the judgment of the trial Court.
2. Whether the learned Kadis of the lower Court were right when they rejected ground of appeal No. 3 of the Appellant before them and held that the Appellant abandoned his Da’awa (claim).
3. Whether the judgment of the learned Kadis of the lower Court was supported by the provisions of the Holy Quran, Sunnah of the Prophet Muhammad (peace be upon him) or the general consensus of jurists (Ijma’a).

The Respondent’s brief of argument was filed on 18/04/2021 and a single issue for determination was raised therein. The issue is:-
Whether the learned Kadis fully and dispassionately considered and resolved all the various issues raised by the Appellant and the Respondent according to Islamic Law.

In arguing issue one, learned Counsel for the Appellant, Yakubu Abdullahi, Esq. submitted that the trial Court was wrong to enter judgment for the Respondent in a claim for distribution of estate where all the heirs of the deceased were not invited and equally the Court below erred in affirming the decision. He referred to Ihkamul Ahkam PP 245, 235 and 134. A situation where only the Appellant and the Respondent to the exclusion of other heirs were before the Court is not envisaged under the Islamic Law. All heirs to the deceased ought to be called. He referred to SHATACHE v. BALARABA (2006) 3 SLR (PT. 11) 103. Since the final Court failed to invite all the heirs for the purposes of distribution of the estate, the Court below ought to have assumed jurisdiction and called the heirs. He referred to FALINGO v. FALINGO (2006) 2 SLR (PT. 111) 211.

He also argued that it is wrong for the trial Court to refuse to share the inheritance to all the heirs and the Court below also fell into the grave error. He referred to Quran 4:7. Moreso, the distribution as ordered by the Court below is vague having not apportioned shares to each heir. He referred to SAFETI & ORS. v. SAFETI & ANOR (2001) 3 SLR (PT. IV) 43.

On issue two, he submitted that under Islamic Law it is the duty of the Court to ask the claimant to lead evidence in support of his claim. He referred to Tabsiratul Hukkam Vol. 1 Page 44. The Court below was therefore in error to hold that the Appellant has abandoned his claim. He referred to FARAWA v. DAURAWA (2007) 3 SLR (PT. IV) 80. This issue was raised by the Court without any basis as even the Respondent did not raise it. A Court can only give judgment where there are facts in support of its findings. He referred to KAUSANI & ORS v. KAUSANI & ORS. (Supra).

On the third issue, he submitted that the lower Court’s judgment was not in accordance with the provisions of the Holy Quran and Sunnah. The judgment of the Court below did not comply with the provisions of the Quran, Sunnah or Ijma and is therefore liable to be set aside.

The Respondent argued in his brief of argument that in Islamic Law a Court cannot go beyond the claim of the claimant and the claimant’s relief is the distribution of her late grandfather’s estate and other heirs cannot be parties because they were not sued by the Respondent.

He also argued that with the Appellant’s admission that the two farms and a house belonged to their late grandfather, then it is the duty of the Court to distribute the estate according to Islamic Law. The Court below and the trial Court dutifully investigated who the legal heirs are before distributing the estate.

I have gone through the issues for determination formulated by parties to this appeal and in my view, the issue formulated by the Respondent is capable of resolving the contention in this appeal. The issue will be adopted by this Court albeit with a slight modification. The issue is:-
Whether the Court below was right to affirm the decision of the trial Court under Islamic Law.

The arguments of parties will be considered under the above issue.

The facts of this case are not much disputed. The Respondent instituted an action at the trial Court claiming the distribution of estate of her late grandfather Abdullahi consisting of two farmlands and a house in possession of the Appellant. Initially, the Appellant denied the claim but as the trial progressed he admitted the whole claim of the Respondent. He however stated that the Respondent was given her share which she sold to him at the cost of N60,000.00. The trial Court asked the Respondent to bring witnesses who could prove her claim.

Fundamentally, Islamic Law of inheritance is predicated upon the command of Almighty Allah (SWA) in the Holy Quran and prophetic traditions. In every situation, where distribution of a deceased’s estate comes up in a Court of law, there are some hurdles or conditions which a plaintiff must satisfy. The law always insists that the plaintiff must present two witnesses to prove:
a. The death of the deceased;
b. The surviving heirs to the deceased;
c. Whether the deceased owed any debt; and
d. Whether the deceased made a will.
See YARI v. MIKAILA (1986) 5 NWLR (PT. 46) 106; HAMZA v. LAWAN & ANOR. (2006) LPELR 7657; SHEHU & ANOR. v. SHEHU (2017) LPELR 44596; TIJJANI & ORS v. YABI (2017) LPELR 44606 and IBRAHIM v. GIRKO (2021) LPELR 54953.

​The Respondent called two witnesses who testified to the fact that they know the deceased, his children and the estate he left behind. They also informed the Court that all the children of the deceased who were three males were dead and the surviving heirs are only the grandchildren. The trial Court accepted their evidence having not been impeached by the Appellant. The trial Court held that the Respondent was able to satisfy the conditions relating to inheritance in Islamic Law.

The trial Court asked the Appellant to present his witnesses on his counter claim that the Respondent has been given her share of inheritance which she sold to him. He presented two witnesses and the trial Court rejected their evidence as being hearsay. These points were not taken on appeal before the Court below and it follows therefore that they are no longer in contention or they are accepted by the Appellant.

Now, one of the first point raised before this Court is that the Court below was wrong to affirm the decision of the trial Court who did not invite all the heirs before delivering its judgment. This point was not taken at the trial Court but raised for the first time at the Court below. Notwithstanding that fact, in Islamic Law, a judge is not restricted to the submission of parties before him. When wherever he finds an error in any case, he is obliged to correct that error. See SIDI v. SHA’ABAN (1992) 4 NWLR (PT. 223) 113; NASI & ORS v. S. HARUNA (2006) 2 SLR 154; ISA v. ISA (2006) 3 SLR 217 and ADAMU v. ABDULRAHMAN (2020) LPELR 51580. Can the failure of the trial Court to invite all the heirs for the purposes of distribution of estate be fatal as to render the judgment of the trial Court voidable or liable to be set aside? Often, situations abound that an heir institute an action for the distribution of an estate of a deceased person. The other heirs may not show interest or that, they are living in a far place. The law is that it is preferable that the judge should endeavor to bring all the heirs to Court before the distribution of an estate and where it is practically impossible, a judge is allowed to distribute the estate and give the claimant his share leaving the shares of the other heirs who can claim same whenever they surface. In HAMZA v. LAWAN & ANOR. (Supra) AT 15; Muhammad, JCA (as then was) quoting a passage from a book titled Mueenul Hukkami fi ma Yataraddadu Baina Alkhasmaini Minal Ahkami P. 230 stated that:-
“Where a man dies and leaves surviving heirs, if one of them claims his father’s death and makes a claim against a house which is in another’s possession whereas the house was owned by his father which he left behind to him and other relatives such as so and so, if the person in possession denies the claim and the claimant establishes with two witnesses the death of his father, the number of heirs, and that the said house was owned by his father who died and the estate devolved on the heirs and none of the heirs was present in Court except the claimant, the judge will admit the evidence and will confer title of the house on the deceased and will proceed to distribute the house accordingly giving the claimant his due share… But as for the shares to other heirs, these will be left in the hands of the claimant so that any time anyone of them surfaces, he shall take his own share from him. (The Judge) shall not compel the repeat of evidence to establish that the estate was owned by his father”.
See also Irshad Al-salik Commentary on Askari Vol. 1 & 2 PP 384 – 385 and Ihkamul Ahkam P. 209.
Thus, failure to call all the heirs of late Abdullahi the grandfather of the parties to this appeal before the distribution of the estate is not fatal to the case and the decision of the Court below affirming the trial Court’s decision is unassailable.

​The Appellant also argued that the Court below did not consider his Ground 3 therein where he raised the issue that the trial Court did not consider his claim that one of the farms did not form part of the deceased’s estate. Also that the estate was distributed and the Respondent was given her share of the inheritance which she sold to the Appellant at the cost of N60,000.00.

It is to be noted that the Respondent has, at the trial Court gave a vivid description of the two farmlands in the presence of the Appellant who did not dispute the said description and though he initially denied the whole claim of the Respondent, he later admitted the whole claim through his Counsel. Then it seems the Appellant wants to resile from facts he admitted at the trial.

An admission under Islamic Law is a binding declaration by its maker in favour of another. It must be clear and devoid of any ambiguity. See Fathul Aliyu Malik Vol. PP 30 – 40 and Bidayatul Mijtahid Vol. II P. 352. Also in Ruxton on Maliki Law at PP 281 – 282, it is stated that:-
“The judge will not enter judgment in favour of any of the litigants until after the claimant has stated his case.
The judge will then ask the defendant to respond to it. If he (the defendant) admits the claim, then there is no problem, but if he denies, the plaintiff shall be called upon to adduce evidence in proof of his claim”.

Thus, it is firmly established that a free and voluntary admission made by a matured and sane person is binding and enforceable against the maker. Where an admission satisfies all the requirements of an Iqrar, it is the best evidence and in a face of a valid admission, a claimant need not adduce evidence in proof of his claim. Facts admitted need no further proof. See HADA v. MALUMFASHI (1993) LPELR 1348; HAMZA v. LAWAL & ANOR (Supra); KUR v. FANNAMI (2010) LPELR 4411 and SANI v. IBRAHIM (2017) LPELR 45121. Therefore, having admitted to the claim, the Appellant cannot turn round to say that the farmlands did not form part of the deceased’s estate. Moreover, the Appellant abandoned his claim at the trial Court. See P. 43 of the record of appeal.

On the issue of giving the Respondent her share which she sold to him, the Appellant was asked to bring witness in proof of that claim and he presented two witnesses whose evidence was held to be hearsay and inadmissible by the trial Court. The law is that in Islamic Law hearsay evidence is inadmissible except in matters of pregnancy, marriage, fosterage menstruation, inheritance, birth, state of being a Muslim or apostasy. See GABARI v. BABANUWA (2017) 5 SQLR (PT. III) 571 and KAKALE & ANOR v. NOMA (2021) LPELR 55093.
The evidence of the Appellant’s witness No. 1 on the issue was even rejected by the Appellant’s Counsel, witness No. 2 initially stated that he was present during the first stage of the transaction but testified further that it was Alhaji Isiyaka who told him about the settlement between the Appellant and the Respondent and the 3rd witness testified that the Appellant sent his representative together with his two sons to inform him about the settlement between the Appellant and the Respondent. A witness must testify as to what happened in his presence or what he heard from a party or what he saw. Anything short of this will render his evidence invalid except where that evidence happens to fall under the exception to the hearsay rule. In the appeal before us, the evidence of these witnesses presented by the Appellant did not fall under the exception and it is properly rejected by the trial Court and the Court below was thus right to uphold the trial Court’s position. In the circumstances, the only issue is hereby resolved against the Appellant and in favour of the Respondent.

Having resolved the issue against the Appellant, it follows therefore that this appeal is unmeritorious and it is accordingly dismissed. The judgment of the Sharia Court of Appeal, Kano is hereby affirmed with cost of N50,000.00 to the Respondent.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, in the draft, the judgment just delivered by my learned brother, ABUBAKAR MU’AZU LAMIDO, JCA.

I agree with his reasoning and conclusion and I have nothing to add, I also abide by the consequential order contained therein.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abubakar Mu’azu Lamido, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

YAKUBU ABDULLAHI, ESQ. For Appellant(s)

BASHIR AHMA, ESQ., WITH HIM, RABIU SANI, ESQ., KABIRU I. ABDULKADIR, ESQ. AND BADAMASI SULEIMAN, ESQ. For Respondent(s)