GARBA BADAJI v. MAMMAN KUWARA (SAGE) & ANOR
(2018)LCN/12161(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of November, 2018
CA/S/64S/2017
RATIO
ACTION: JOINDERS OF PARTIES
“I agree with the reasoning and conclusion of the lower Court on this point. On the joinder of the first respondent, the record shows that he was first brought into the matter as a representative of the 2nd respondent before his counsel applied that he be joined as a party who has a right in the trial. He was so joined without any objection. On his joinder the lower Court held; ‘Surely, Sharia Law has agreed that at any time a person heard of a trial that pertain to his right, can request to be join to protect his right…’ That to my knowledge is the correct position of the law. It is the right of a person who will be affected by the outcome of a pending case in Court, at any stage of the proceedings, to seek to be joined in the action.” PER AMINA AUDI WAMBAI, J.C.A.
ISLAMIC LAW: ISLAMIC LAW OF INHERITANCE
“In Mayyara Vol. 1 Commentary on Tuhfa, at page 98, 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 reply the claim. It is also proffered where the claim involves the property of a missing person or a minor.’ (ARABIC WRITING) In Fathul Aliyil Malik Vol 2 at page 190 the learned author said as follows: “Whosoever claims ownership in fee simply of a property in the possession of another and alleged that it is part of the estate he has inherited, the person in possession of the estate shall 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.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
GARBA BADAJI Appellant(s)
AND
1. MAMMAN KUWARA (SAGE)
2. MUHAMMADU CHINDO Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
The appeal before us is over the decision of Sharia Court of Appeal, Kebbi State in respect of distribution of the estate of one Hajiya Hajo which affirmed the decision of Upper Sharia Court Illo, wherein the Appellant was given 1/3rd of the estate, the 1st Respondent 2/3rd and the 2nd Respondent was given nothing.
At the Upper Sharia Court Illo, now called the trial Court, the 2nd Respondent as plaintiff instituted an action against the Appellant for the distribution of the estate of the said Late Hajiya Hajo who died intestate and left behind cows, sheep and goats in the possession of the Appellant. The Appellant denied the claim and contended that the 2nd Respondent had no share in the estate having already been given a cow by the deceased. He claimed that while the 50 cows were given to him by the deceased before she died, and to which gift there was a Court declaration, the sheep and goats belong to him. The 1st Respondent was upon request of the 2nd respondent, joined as a party (as 1st plaintiff). Upon investigation of the estate of the deceased, 19 cows were seen and a further investigation revealed 25 other cows, which the Appellant said were from the two cows given to him by the deceased.
Appellant was asked to prove the gift of the two cows that multiplied to 25 and the Respondents to prove that the sheep and goats belonged to the deceased. At the end of trial, the trial Court made some specific findings viz; that the Appellant failed to prove the gift of the cows but that the cows were bequeathed to him by the deceased; that the Respondent failed to prove that the sheep and the goats were owned by the deceased; that the 2nd respondent, Muhammed Chindo, being a son of the deceased?s younger sister has no share in the inheritance. Accordingly, the Court held that being a bequest, the Appellant was entitled to only 1/3 of the estate and was confirmed to be the owner of the sheep and the goats. The 1st Respondent being the son of the deceased’s elder brother was entitled to the residuary, the 2/3 of the shares, and the 2nd Respondent being the son of the deceased’s younger sister, was entitled to nothing. Appellant was however, informed of his right to seek compensation for rearing the cows.
Appellant was displeased with the said judgment of the trial Court and appealed to the lower Court on the following grounds:
1. That prior to the death of Hajiya, she gathered us before the Judge and made her bequest, but the Court did not consider this.
2. I informed the Court that Hajiya entrusted the cows to me and they have been under my custody for a period of 20 – 30 years.
3. I informed the Court that there are some sheeps belonging to these people claiming to her relations and are taking care of her. But I leave with her since I was waning (sic) up to this stage.
After considering the records of the trial Court, counsel?s argument and resolving the issues formulated, the lower Court found no merit in the appeal. It dismissed same and affirmed the decision of the trial Court.
Still aggrieved and unrelenting, the Appellant approached this Court by a Notice of Appeal filed on 28/3/17 predicated upon the following grounds:
GROUND ONE
The Learned Kadis of the Lower Court erred in Law when they affirmed the judgment of the Trial Court where it is apparent that the procedure adopted by the Trial Judge was grossly wrong and against the basic principles of Islamic Law Procedure…
GROUND TWO:
The Learned Kadis of the Lower Court erred in Law when they affirmed the distribution of the deceased’s estate as administered by the trial Court when it is apparent that the estate left behind by the deceased and legitimate heirs had not been clearly ascertained by the Trial Court.
GROUND THREE:
The Judgment of the Trial Court which was affirmed by the Lower Court is against the principle of fair hearing.
From these grounds of appeal, learned Ahmed Zumaru, Esq., who settled the Appellant?s brief of argument filed on 11/12/2017 and deemed on the 10/4/18, formulated a sole issue for determination.
Whether the lower Court was right in affirming the decision of the Trial Court regard being heard (sic) to the procedure adopted by the Trial Judge and correct application of Islamic Law of inheritance.
In the Respondent’s brief of argument settled by Learned Sanusi Sama?ila, Esq., filed on the 12/10/2018 and deemed on the 15/10/18 a lone issue was also distilled for determination, to wit:
“Whether the lower Court is right in affirming the decision of the trial court.”
Arguing the appeal, the learned Appellant’s counsel submitted that the 2nd Respondent’s statement of claim before the trial Court does not comply with the requirement of the law that a claim should be precise, specific and categorical in that it is devoid of the number of cows, sheep and goats which the deceased left behind with the Appellant. This defect, it was submitted, is fundamental and goes to the root of the jurisdictional competence of the Court, the Respondent’s statement in Court being akin to a statement of claim or defence in the High Court, citing in support of the cases of Abdullahi Magaji & Mafoluku & Usman A. ItaAlamu (1985) S.C.L.R.N. 105 and Jafo Vs. Mailafiya (2013) 1 SQLR (Prt. 1) 128.
Similarly, he complained that no reason was given for joining the 1st Respondent nor was the procedure of joining a party to an action compiled with before joining the 1st Respondent in that he failed to provide the detailed information on the death of the deceased, the estate left behind and the heirs, if any, so as to show his locus standi to be so joined.
The learned trial Judge counsel argued, was wrong to have allotted shares to the 1st Respondent and distributing the estate between the Appellant and the 1st Respondent.
In addition, learned counsel also complained that it was wrong for the lower Court to have affirmed the decision of the trial Court which treated the Appellant’s claim as ‘Wasiyya’ and ascribing 1/3 of the estate to him instead of giving him the whole estate as ‘gift’ from the deceased, which he argued, is the appellant’s apparent claim since the deceased died as ‘Kalala’ living behind no ascendants nor descendants. That the Court ought to have given the appellant the whole estate even if it was a wasiyyah that was proved, the Respondents not falling within the heirs explained in Quran 4:176.
It was submitted that of the 3 essentials of inheritance namely, (1) Deceased; (ii) the Heirs, and (iii) the Estate, apart from the established fact that one Hajiya hajo died, the exact estate left behind and the heirs, if any, was not properly investigated by the trial Judge as he ought to have done since the 1st Respondent stated that the deceased had no child.
That though, the Appellant stated the number of the cows to be 50 of which 25 belong to him, being multiplied from the two cows given to him by the deceased, the 2nd Respondent did not state the number of the cows nor did the respondents prove their locus standi or did the trial Court investigate the remaining 6 cows out of the 50 cows that were not distributed and not accounted for, thereby committing another fundamental error which the lower Court ought not to have affirmed.
The lower Court was also faulted for affirming the order of the trial Court that the appellant is to institute another action to recover the cost of rearing the cows instead of treating that as a debt which ought, in compliance with Qur’an 4: verse (1) be settled first before distribution of the estate.
It was submitted that under the Islamic law, it is the judge who from the facts of the case determines who should be the plaintiff or the defendant referring us to Ihkamul Ahkkam (commentary on Tahifatlul, pp 281) and JawahirulIklil Vo. II (commentary of Mukhtasar – Elkhalil, p. 22) but that where as in their case, there is a claim and a counter claim, all parties should be treated as claimants and judgment be entered for the party with better credible evidence, citing in support Ashalul-Madarik Vo. III, Page 228 and the case of Usman Vs Kareem (2013) 1 SQLR (Prt 1) 91 @ 109.
He contended that the trial Court was wrong to have also affirmed the action of the trial Court which called upon the Appellant to prove only the 25 cows and not the sheep and the goats and for failing to call on the Respondents to prove their locus standi.
We were urged to allow the appeal, set aside the decision of the lower Court and order a retrial by another judge other than the judge of the trial Court.
Responding, the learned Respondents’ counsel in his two page respondents? brief of argument submitted that the lower Court was right in affirming the decision of the trial Court restricting the share of the Appellant to 1/3 of the estate because under Islamic law a deceased cannot will more than 1/3 of his estate and a beneficiary of a will in excess of 1/3 will be entitled only to 1/3 referring us to page 537 of the Samaruddani book.
Qur’an chapter 4 verse 11, he submitted, has clearly spelt out the categories of persons eligible to inherit. That a person who shares the same father with the deceased will, in the absence of a full brother inherit his deceased brother. We were urged to affirm the decision of the lower Court and dismiss the appeal.
A careful condensation of the appellant’s counsel’s submission reveals that the centerpiece of his complaint against the decision is basically twofold. Firstly, on the competence of the 2nd respondent’s claim before the trial Court and the joinder of the 1st respondent, and secondly, on the propriety of treating the gift made to the appellant by the deceased as a wasiyya and restricting his share to 1/3 of the estate while allotting 2/3 of the estate to the 1st respondent.
The first arm of the complaint in essence is whether the 2nd respondent’s statement of claim before the trial Court is competent having regards to the Islamic law procedure of presenting a claim before the Court.
Under Islamic law, the first duty of the Court upon presentation of a claim, is to determine from the claim and the facts presented, who is the plaintiff and who is the defendant.
The party who initiates or first institutes the action against the other does not necessarily become or remain the plaintiff and the person against whom the action is instituted, the defendant. Whether the initiator of an action retains the position of a plaintiff or becomes a defendant depends on the dictates of the facts stated in the claim. Where from the claim, the person who appears in Court as plaintiff is the one whose statement finds support with the original state of affairs and the other person?s claim runs counter to or is not supported by the original state of affairs or custom, the first person becomes the defendant and the person originally sued, becomes the plaintiff. This distinction is paramount in order to know where to place the burden of proof as the burden of proof is always on the plaintiff. See TUHFATUL HUKKAM (pt 1) by Abbas A Machika page 8 and the case of SUGA V SUGA (2017) LPELR 43092(CA). See also lhkamul-Ahkam [Commentary on Tuhfatulul- Hukkam] page 8; Ruxton on Maliki Law, pages 281 – 282 and Jawahirullklil vol. II [Commentary on Mukhtasar-el-Khalill page 225].” Per WALI, J.S.C (Pp. 9-10, paras. G-C)
The next fundamental duty of Court is to determine whether the claim meets the basic requirements of (1) being definite, specific and categorical, and (2) explanatory. The claim should be clear and free of any ambiguity of what is being claimed and the quantity claimed, its location and an explanation of how the claim arose. If the claim involves a sum of money, the exact amount must be stated. Unless these conditions are met, the claim should not be accepted, see IHKAMUL AHKAM page 9 lines 1-2 where it was stated that;
“two conditions are essential to the subject matter in dispute; there should be clear statement of the complaint followed by a proper description of the subject matter.”
Similarly, the learned author of SIRAJUSSALIK SHARH ASHALUL MASALUK at pages 198- 1999 of Vol 2 explained how a claim should be viz:
“The plaintiff should make his claim definite i.e. his claim shall not be entertained unless it is specific in description, quantity amount of money etc. is, claim should be correct, if it is not concrete in any form, his claim will not be entertained. The Court should then ask for the cause or source of the title to the claims from the defendant, if the claim is money or something else, he will ask him the source of the right to the claim etc, whether it is as a result of debt, sale of inheritance.”
In the instant case, the 2nd respondent’s claim reads thus:
“I Muhammadu is suing Garba Badaji so that the Court will divide for us the sheep and goats left by late Hajiya Hajo … presently all the estate is in the possession of Garba Badaji. This is why I am seeking the Court to divide this inheritance for us.”
The appellant denied the claim and stated that the 2nd respondent owes nothing. In his explanation, he stated that the deceased gave him all the 50 cows but the sheep and the goats belong to him. It is obvious from the record, that the 2nd respondent’s claim makes no mention of any cows nor specifies the number of the sheep and goats claimed to be in possession of the appellant. It was only in the appellant’s denial and explanation that the existence and number of the cows was stated to be 50. The pertinent question is whether the noncompliance with this procedural requirement irrespective of the admission of the existence of the cows by the appellant and specifying their number defeats the respondent’s claim or renders it incompetent. Methinks, not bearing in mind that under Islamic law, technicalities have little or no role to play in the hiatus of adjudication. The duty of the Court is to do justice between the parties based on the evidence placed before it. The appellant herein having himself stated the number of the cows to be 50, which cows he claimed the deceased gave to him, he cannot be said to be in doubt of the respondent’s claim against him.
The lower Court held as follows:
“In an issue of inheritance, even the person who did not come to the Court to institute the case seeking for share from the inheritance. Then if during the case of the trial the Court find out that he has right to the inheritance, then he will be allotted with his share. Therefore failure to state the amount of the estate by the respondent will not deter him from the inheritance or to make his case to be dismiss, since there is no dispute that Hajiya Hajo left 50 cattle. Based on this ground we held that not knowing the amount of the estate will not make Court to dismiss the case of the respondent.”
I agree with the reasoning and conclusion of the lower Court on this point.
On the joinder of the first respondent, the record shows that he was first brought into the matter as a representative of the 2nd respondent before his counsel applied that he be joined as a party who has a right in the trial. He was so joined without any objection. On his joinder the lower Court held;
“Surely, Sharia Law has agreed that at any time a person heard of a trial that pertain to his right, can request to be join to protect his right…”
That to my knowledge is the correct position of the law. It is the right of a person who will be affected by the outcome of a pending case in Court, at any stage of the proceedings, to seek to be joined in the action. In the case at hand, the record clearly shows the interest of the 1st respondent in the action and his locus standi in the matter. There is evidence on record that Hajiya Hajo, the praepositus, died; leaving no child, ascendants or siblings that the 1st respondent is the nephew of the deceased, that is the son of her elder brother, and that the deceased left behind some estate.
The appellant’s argument therefore that respondents did not prove their locus standi is a storm in a teapot.
This then leads to the second arm of the complaint which is on the propriety of treating the gift made to the appellant by the deceased as a wasiyya rather than as a gift and restricting his share to 1/3 of the estate while allotting 2/3 of the estate to the 1st respondent.
Now, the appellant’s initial statement when the respondent’s claim was read to him is that all the 50 cows were given to him by the deceased before her death which gift was made before the Court. The Court ordered for the inspection of the cows and 19 cows were shown. The respondent insisting that there were more, a second inspection was ordered from which 25 more cows emerged. At that point, the appellant then claimed that the 25 cows multiplied from the two cows given to him by the deceased thereby reversing his earlier claim that all the 50 cows were given to him by the deceased in her life time.
It is important to emphasize that a Will is different from a gift. In the case of a will unlike a gift which takes effect immediately it is made and has no limit, a will which is a legal declaration of intention of a Muslim testator with respect to his property which he desires to be carried into effect after his death, is limited and restricted to certain conditions. See SIRAJUS – SALIK vol ii page 345.
Undoubtedly, a Muslim is allowed to bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of the testator’s death. Indeed it is prophetically encouraged not to delay doing so. In the following Hadith in -Bukhari it was reported:
“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.”
A will and a gift are obviously two different ways of transferring ownership of property to another person.
A will is dependent upon the death of the testator and can be revoked any time before the death of testator. On the other hand, a gift is completed during the life time of the donor and after the delivery of the possession, is usually irrevocable. Similarly, while the right of the donor of a gift is unrestricted, the right of a testator of a Will is limited in two ways.
Most importantly, it is not permissive for a Muslim to will more than 1/3 of his total estate, and a beneficiary of a Quranic share cannot be a beneficiary of a will. A will in excess of 1/3 is effective only to the extent and proportation of the 1/3 and no more. The other 2/3 goes to the heirs or in the absence of rightful heirs, to the baitull mait. See SAMARUDDANI page 537. SONG V SONG (2001) FWLR (pt 44)459.
It is clear from the record that the Appellant was not consistent in his claim regarding the status of the cows, whether as a gift or bequest of the 50 cows or a gift of 2 cows that multiplied into 25 as he later claimed. Appellant’s initial response when asked of the respondent?s claim was that;
“as for the cows we came with her prior to her death and she said she gave me all the 50 cow (sic) even after her death.”
This position was however reversed when later he stated that 2 cows were given to him by the deceased which produced the 25 cows.
The appellant’s claims were conflicting. At both fronts whether as a gift or a bequest, the duty it was of the appellant to prove the alleged ‘gift’ or ‘bequest’. His claim of ownership of the cows either by gift or bequest made him a plaintiff thereby placing the burden of CA/S/64S/2017 Page 15 of 24 proof on him. There was also on the part of the Court, the need to ascertain exactly what was meant by the phrase ‘I have given the 50 cows to you even after my death’ for the purpose of determining the nature of transfer and the required proof respecting each claim.
It is clearly evident on record that the appellant failed to prove his subsequent claim of gift of two cows which multiplied to 25 cows.
On the appellant’s initial claim of bequest of the 50 cows to him, the trial judge relied on a certain document it called a bequest document which does not form part of the record of this appeal before us nor is the source of the document disclosed on record. Apart from the mere statement that it found the document, there is nothing on the transmitted record or as an exhibit in the case showing the nature of the document. The form, the executors, if any, and its contents remain unknown.
The law is trite that under the sharia as it is in the common law, judgment of a Court must be based on evidence given by witnesses which may include documentary evidence. Such evidence must be the legally admissible and disclosed evidence on record. It must not be evidence outside the record or evidence shrouded in mystery. The Court cannot rely on evidence outside the record or on evidence it may be aware of but not disclosed on record. In the case of IBRAHIM V SHAGARI (1983) ALL NLR 507 the apex Court held thus;
“Although it seems fairly obvious it needs emphasis that Courts of law decide issues in controversy between parties on the basis of the evidence before them. It would be invidious if it were otherwise.”
Similarly, under Islamic law, the judge basis his judgment on evidence adduced by witnesses. In the book of IHKAMUL AHKAM page 14 it is stated as follows;
“the judge depends on evidence of witnesses in giving judgment.”
Now, a claim of wasiyya must be proved by (a) evidence of two credible witnesses; or (b) one male and two females of equal credibility; or (c) by a hand written wasiyyah duly signed by the testator plus evidence of a credible male witness (Maliki and Hanbali schools of jurisprudence) which must be followed up with an oath of judgment called YAMINUL QADHA without which the claimant will not be entitled to judgment even with evidence of credible witnesses. On the meaning of yaminul qadha and when it is applicable, the Supreme Court in the case of Jatau v. Mailafiya (2013) 1 SQLR (part 1). Said thus:-
“In Mayyara Vol. 1 Commentary on Tuhfa, at page 98, 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 reply the claim. It is also proffered where the claim involves the property of a missing person or a minor.” (ARABIC WRITING) In Fathul Aliyil Malik Vol 2 at page 190 the learned author said as follows: “Whosoever claims ownership in fee simply of a property in the possession of another and alleged that it is part of the estate he has inherited, the person in possession of the estate shall 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.”
From the record before us, this is not shown to have taken place. Rather, the trial Court only relied on a document it called a bequest document. This document at its best scenario where it be so proved, constitutes one witness in support of the Will. Evidence of another witness was necessary to complete the required number of two witnesses. That is not all, the appellant was also required to take the oath of judgment (yaminul qadha). The said document relied upon by the trial Court and confirmed by the lower Court on which it based its confirmation of the bequest is insufficient evidence in proof of bequest. The lower Court erred in affirming the alleged will of the 50 cows to the appellant.
On the distribution of 2/3rd of the estate to the first respondent Muhammad Kawara, and to the exclusion of the second respondent Muhammad Chindo who initiated the action, the law is as ordained in the Quran and explained by the scholars. It is founded in or traceable to the Holy Quran Chapter 4 Suratul Nisa’l, : verses 11-12 and 176 of Suratul Nisa’l thus;
Verse 11: Allah (thus) directs direct you as regards your children’s (inheritance) to the male a potion equal to that of two females if only daughters two or more their share is two thirds of the inheritance, if only one her share is a half. For parents a sixth share of the inheritance to each if the deceased left children and the parent are the only heirs. For the parents if no children and the parents were the only heirs, the mother has a third if the deceased left brothers (or sisters) the mother has a six, the distribution in all cases after the payment of legacies and debt, ye not whether your parents or your children are nearest to you in benefits.
These are settle portion ordain by Allah and Allah is all knowing all wise. (ARABIC WRITING) Verse 12: in what your wives leaves your share is a half, if they leave no child. But if they leave a child, ye shall get a fourth after payment of legacies and debt in what ye leaves, there share is a fourth if ye leave no child but if ye leave a child, they get an eight after payment of legacies and debt. If the man or woman whose inheritance is in question has left neither ascendants nor descendants but has left a brother or a sister each one of the two gets a sixth, but if more than two they share in a third after payment of legacies and debt so that no lost is cost (to any one). Thus it is ordained by Allah and Allah is all knowing must for bearing.” (ARABIC WRITING) Verse 176: They ask thee for a legal decision say God direct (thus) about those who leave no descendants or ascendants as heirs, if it is a man that dies leaving a sister but no child she shall have half the inheritance, if (such a deceased was) a woman who left no child her brother takes her inheritance, if there are two sisters, they shall have two third of the inheritance (between them), if there are brothers and sisters (they share) the mate having twice the share of the female. Thus Allah make clear to you (his law) lest ye err. And Allah has knowledge of all things.”
In the instant case, the deceased was not survived by either ascendants nor by a direct child or even by any sibling. Both the first and second respondents are children of the deceased’s male and female siblings respectively both of whom would have been excluded if the deceased had been survived by her siblings through whom the respondents claim. Not being survived by any Quranic heir the respondents who are both distant kindred of the same level both qualify to inherit from the estate of the deceased. Going by verse 176 and the explanation of the scholars, there was no justification for the exclusion the 2nd respondent on the ground of being the son of the deceased sister. That part of the decision of the trial Court is also wrong.
It was also submitted that the trial Court ought to have investigated the 6 cows which were not distributed and unaccounted for. It’s failure so to do, he argued, was another fundamental error for which the lower Court ought to have set aside the decision. On this submission, this is what the lower Court said;
“We also noticed the appellant claiming that it is among these cattle that Hajiya was nursed. But he did not states what happened to the remaining cattle. In fact even we at this Hon. Court did not make any investigation par the issue of these cattles. But this is due to the fact that Mohammad Kawara did not show any concern or claim to these remaining cattle. Whereby he knows that there are 50 cattle. As such we presumed that silence on these 6 cattle is like a consent to forget about them because they are his right and he is not a “Muhajuri”, to fall into another category that a Court can discard.”
I agree with the reasoning of the lower Court. For the stated reason, we do not consider the failure to investigate the remaining 6 cows unaccounted for a big deal to warrant the lower Court setting aside the decision of the trial Court, only on that ground.
The trial Court was also faulted for ordering the appellant to file an action to recover the cost of rearing the cattle instead of treating it as a debt to be settled before the distribution of the estate as stated in the Holy Quran chapter 4 verse 11 that the distribution in all cases is after payment of legacies and debt.
It is to be noted that the Court made no such order. What is apparent on the record is that the Court only informed the appellant of a right to seek compensation, appellant having not made any such claim. There is nowhere in the record where the appellant made any claim for expenditure incurred in the cause of rearing the cattle. The appellant having not made any such claim the unsolicitated advise for the institution of an action to recover the cost of rearing the cattle which the lower Court confirmed, is not based on any claim or proof of any such claim before the Court and goes to no issue. There being no claim on record for the cost of rearing the cattle, a debt cannot accrue when there is no obligation or nothing owed. The provisions of the Holy Quran chapter 4 verse 11 does not apply here.
On the whole, for the observed errors in the proceedings of the trial Court which the lower Court erroneously affirmed, we find some merit in this appeal. The appeal succeeds in part and it is partly allowed regarding the 1/3 awarded to the appellant as a bequest in the absence of evidence on record showing such gift was made by the deceased and also the zero allocation made to the 2nd respondent who has equal degree of linkage to the propositus as the 1st respondent to whom 2/3 of the estate was allocated.
It is pertinent that the appellant’s own claim does not constitute evidence. That part of the decision of the lower Court in appeal no. SCA/KBS/IILU/38/2016 delivered on the 20th March, 2017 which affirmed the decision of the Upper Sharia Court ILLO in suit no. USC/ILLO/FI/CV/26/2016 delivered on the 01/09/2016 is hereby set aside. In its place, it is ordered that the suit be remitted to the Hon Grand Kadi to be assigned to another judge to retry the issue of bequest as claimed by the Appellant for which no evidence was proffered. In the event that the Appellant’s claim is argued as a gift by the deceased, the retrial judge should take not only credible evidence but also subject the Appellant to the mandatory judgment oath of Yaminul Qadha’i to entitle the Appellant to affirmation of his claim from the estate of the deceased person. However, in the event of the appellant’s failure to prove the claim either as a gift or a bequest, then the estate of the deceased is to be distributed to the two equidistant kindred being the 1st and 2nd respondents bearing in mind that the deceased was survived by her two distant kindred, who in the circumstances of this case, are the only legal heirs with heritable rights due to none existence of the Qur’anic sharers and residuary heirs at the moment of her death.
The two respondents being equal in degree to the propositus, none could exclude the other. They have equal heritable right in the circumstances of this case and are to share equally in the heritable portion of the estate which will be determined after the retrial proceedings by another judge so assigned by the Grand Kadi of Kebbi State.
The parties shall bear their costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of reading a draft of the judgment just rendered by my learned brother Amina Audi Wambai, JCA. I fully agree with the reasons therein and the conclusion that the Court below had failed to properly ascertain the heritable property in question and the heirs entitled to inherit the deceased, when a Muslim die there are four duties which need to be performed.
They are:
l. Pay funeral and burial expenses.
2. Paying debts of the deceased.
3. Determining the value/will of the deceased (which can only be a maximum of one Third of the property).
4. Distribute the remainder of estate and property to the relatives of the deceased according to Shariah Law.
I agree that the distribution has to be redone with foregoing basic tenets of mirath (inheritance) duly observed.
I abide by all orders made in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. Consequently, the judgment of the Court below delivered in SCA/KBS/IILU/38/2016 in part is set aside and the case file should be remitted to the Hon. Grand Kadi for assignment to another panel to be heard de novo. In reading through the records show a cocktail of flaws both in procedure and in evidential requirements in reaching a decision under Islamic Jurisprudence. It would be recalled that the trial Court had based its decision on a document of “bequest”. The settled position of Islamic principle of law is that he who asserts must prove and that this can be done by calling at least two unimpeachable witnesses or one male witness or two female witnesses to support the Claimant’s Oath.
See GARBA vs. DONGONYARO (1991) 1 NWLR (PT. 165) 103 AT 109 and several other cases on the subject. It is with this and the fuller decision of my learned Brother in the leading judgment that I adjudge this Appeal as meritorious. The parties shall bear their respective costs.
Appearances:
Sanusi Samaila, Esq.For Appellant(s)
Ahmad Zumaru, Esq.For Respondent(s)
