GOBE & ORS v. GOBE & ORS
(2022)LCN/16739(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, July 14, 2022
CA/YL/02S/2018
Before Our Lordships:
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. BASHIR MUSA GOBE (SON) 2. AMINU MUSA GOBE (SON) 3. KHALIFA MUSA GOBE (SON) 4. AHMED MUSA GOBE (SON) 5. ABUBAKAR MUSA GOBE (SON) 6. YUSUF MUSA GOBE (SON) 7. SAFARATU M. GOBE (DAUGHTER) 8. RUKAIYA M. GOBE (DAUGHTER) 9. AISHA M. GOBE (DAUGHTER) 10. HAJARA M. GOBE (DAUGHTER) 11. ZAINAB M. GOBE (DAUGHTER) 12. HASHIYA M. GOBE (DAUGHTER) 13. HAUWA KULU M. GOBE (DAUGHTER) 14. HABIBA M. GOBE (DAUGHTER) 15. MARYAM M. GOBE (DAUGHTER) APPELANT(S)
And
1. UMARU MUSA GOBE (SON) 2. ALIYU MUSA GOBE (SON) 3. ABDULLAHI MUSA GOBE (SON) 4. HALIMAT SADIYA ABDULLAHI (WIFE) 5. ZAINAB (Abu) M. GOBE (DAUGHTER) 6. HAUWA ABDULHAMEED (WIFE) 7. AISHATU MOHAMMED (WIFE) 8. MUJAHID M. GOBE (SON) 9. NAZIFI MUSA GOBE (SON) 10. NAJA’ATU M. GOBE (DAUGHTER) 11. NAZIFA M. GOBE (DAUGHTER) 12. HAFSAT M. GOBE (DAUGHTER) 13. ESTATE OF LATE ALH. MUSA GOBE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT IS BOUND BY THE ISSUES FORMULATED BY AN APPELLANT
It is settled in a plethora of cases that the Court is not bound by the issues formulated by the appellant or the respondent. The Court has the power to reframe any issue submitted by the parties as far as it arise from the ground of appeal and it is such that when decided will affect the result of the appeal. Moreso the Court of Appeal where it forms an opinion that the consideration of a sole issue is enough to dispose of the appeal, it will be under no obligation to consider all the other issues that had been raised. PER TALBA, J.C.A.
THE POSITION OF THE ISLAMIC LAW ON “AL-LZAR”
Al-Izar is a fundamental requirement of procedure in Islamic law to be applied in every judicial proceedings. Failure to observe the procedure vitiates the proceedings and the judgment delivered is a nullity. There are a plethora of judicial authorities and pronouncements on Al’Izar. In the case of Hakimi Boyi Ummaru v. Aisha Bakoshi (2006) 3 SLR (Pt. 1) Coomasie, JCA (as he then was) described Al-Izar as: “…akin to allocates in criminal trial, in Islamic law it is quite necessary. It has to be done at the end of trial and before judgment is declared. Failure by any Court to do so would vitiate proceedings and judgment delivered without Izar would be null and void”
In other words, where a proceeding of a Court is lacking this fundamental procedure, the judgment is a nullity and liable to be set aside. In Nasiru Alhaji Muhammad v. Haruna Muhammadu & 1 Other (2001) 6 NWLR (Pt. 708) 104 the Court of Appeal stated thus:
“The principle of Al’Izar in Islamic law is like allocutus in English Criminal Justice which must be conducted before an accused person is sentenced before and/or conviction. “A-Izar” in Islamic law goes beyond that. It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court”.
See Wangara v. Tsamiyar Kara (2006) 3 SLR (Pt.1) 168. And in the case of Suleiman v. Isyaku & 6 Ors. (Unreported) Appeal No: CA/K/1426/86 delivered on 5/2/1987 A. B. Wali JCA (as he then was) put it succinctly thus:
“It is a mandatory principle of Islamic law that no one shall be condemned without being afforded the opportunity of being heard. At the end of the parties’ cases, the Court shall ask them whether they have anything more to say before the Court pronounces its judgment. This is what is called Al-Izar something having similarity with allocutus”
See also Mamman Dan Buhari v. Hajo Usman (unreported) Appeal No: CA/K/171/S/92 delivered on 30/06/1994. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Sharia Court of Appeal Yola Adamawa State (hereinafter referred to as the lower Court) delivered on the 9th of November, 2017 in Suit No: ADS/SCA/CV/85/YL/2017.
From the record of proceedings of the trial Court, the Upper Area Court No. 3 Jimeta, dated 5/08/2016, the following persons:
1. Umar Musa Gobe
2. Aliyu Musa Gobe
3. Bashiru Musa Gobe
4. Abdullahi Musa Gobe
(hereinafter referred to as Reporters) made a report to the trial Court against the following persons:
1. Hauwa Abdulhamid
2. Aisha Mohammed
3. Sa’adiya Musa Gobe
4. Abubakar Musa Gobe
5. Hauwa Kula Musa Gobe
6. Habiba Musa Gobe
7. Mariam Musa Gobe
8. Estate of Late Musa Gobe
(hereinafter referred to as Respondents) seeking for the distribution of the Estate of late Musa Gobe. On 9/9/2016 the learned trial Judge ordered for the entire properties of the deceased to be accounted for, theses include:
1. The 4th respondent to fully account for all the proceeds and items realized in deceased safe.
2. The reporter to provide details of deceased bank account whether operative or not with any bank and to fully disclose or account for the monies already realized from any bank account.
3. The reporter to produce before the Court the deceased record book of all his properties and/or all his title deed documents in their custody.
4. And all monies realized which are in custody of any of the heirs or representatives belonging to the deceased to be deposited to the Court. See pages 21-22 of the record of appeal.
On 26/09/2016 the learned trial Judge ordered that one Abdullahi Reality Consult should commence valuation of deceased properties. See page 41 of the record of appeal. On 10/04/2017 the trial Court admitted in evidence the amended inventory report of the estate of Musa Gobe dated 7/4/2017 and the valuation report carried out by Abdullahi reality consult dated 3/3/2017, and marked as Exhibits AA and BB respectively. See pages 44-45 of the record of appeal. It is worthy to note that both the reporters and the respondents were given the opportunity to study the inventory report and the valuation report, and to make observations.
On 15/05/2017 the learned trial Judge distributed the 1st phase of the estate of late Alhaji Musa Gobe as contained at pages 46-60 of the record of appeal:
“Court: This is the distribution of the estate.
DISTRIBUTION
This is the 1st phase distribution of the estate of the Late Alhaji Musa Gobe who died intestate as a Muslim on the 24/4/2016. The deceased is survived by 3 wives 11 sons and 13 daughters as heirs. And at the time of this distribution there is no debt owed by the deceased to be settled nor any wassiyah is left for implementation. This phase of the distribution consist of immovable properties which was computed and valued by Abdullahi Reality Consult as per the valuation report dated 3/3/2017. The valuation report was adopted by the parties on both sides on the 10/4/2017 and same was admitted into evidence and marked as exhibit BB for the purpose of this distribution. The deceased property according to the valuation report stood at N602,017,250.00 comprising of:-
– 36 landed properties in Yola
– 3 Landed properties in Numan
– 1 landed property in Gembu
– 5 landed property in Kano
– 5 vacant plots of land in Yola
– 1 land at Mubi and
– 2 plots of land in Abuja
However, the following properties are in contention and therefore expunged not forming part of this distribution, they are:-
– Property No. 26 page 12 at Shagari Yola – N5,200,000.00
– Property 32 page 13 at WuroHamsobe Mubi N620,000,000.00
– Property 8 page 14 at Abuja – N47,500,000.00
Totaling – N53,320,000.00
Therefore the total valued properties of N602,017,250 is to be less contentious properties of N53,320,000 the outstanding balance of non-contentious properties to be distributed is N548,697,250 to be shared between 3 wives, 11 sons and 13 daughters respectively as per.
The distribution is as follows:-
A. WIVES:- The deceased 3 wives are to get 1/8 of N548,697,250 which is equivalent to N68,587,156.25 to be shared equally between 3 wives, each wife gets property worth of N22,862,385.41 as her share.
B. CHILDREN:- The children are to get the residue of N480,110,093.75 which is to be shared between 11 sons and 13 daughters in the ratio of 2:1, therefore each son gets property worth of N27,434,862.50 while each daughter gets N13,717,431.25 as their respective shares.
The allotment is therefore as follows:-
A. WIVES
1. HAUWA – Her share as a wife is N22,862,385.41 she is to get the following properties:-
– To get property No. 23 Taraba Street Yola N2,530,000.00
– To get plot No. 3 at Sangare N480,000.00
– To get Plot No. 4 Zaranda Street (GSM) N4,880,000.00
– To get Property 12. Gidan Mal. Shehu N440,000.00
– To get land at Shagari Low-cost Mubi N2,750,000.00
– To get property 9 Demsawo Street N3,435,000.00
– To get property 18, Michika Street N1,545,000.00
– To get 68 plots of land at W/Jabbe N6,481,702.20
– To get plot of land adjacent main house N275,000.00
All at a combined value at N22,816,702.00
2. INDO – Her share as a wife is N22,862,38.41 is to get the following properties:-
– To get property No. 3 behind A. Afati Station N5,175,000.00
– To get a property 14 Damsawa (Gidan na Mubi) N1,020,000.00
– To get property No. 13 (Gidan Cameroon) N575,000.00
– To get property 16 Kala’a Street N840,000.00
– To get property 10 Demsawo N1,305,000.00
– To get property 22 M/M way, Jimeta Yola N4,685,000.00
– To get 68 plots of land at W/Jabbe N6,481,702.20
– To get property No. 4 being A. A. Fati N925,000.00
All at a combined value at N21,006,702.00
Which is less than her share with N1,855,683.21, she is to receive same from the estate.
3. HALIMA – Her share as a wife is N22,862,385.41. she is to get the following properties:-
– To get property No. 17 Kala’ a Street N5,865,000.00
– To get a property 32 Saminaka Numan Road N720,000.00
– To get property No. 11 Sangere Futy N4,760,000.00
– To get property at Bakin Kasuwa Mubi N4,050,000.00
– To get property along sabon Layi Mubi N1,450,000.00
– To get 68 plots of land at W/Jabbe N6,481,702.20
– To get property No. 4 being A. A. Fati N925,000.00
All at a combined value at N23,326,702.00
Which is over her share with N464,316.79, as such she is to refund same to the estate.
B. SONS
1. UMARU – His share as a son is N27,434,862.50 he is to get the following properties:-
– Property No. 27 Mubi Road N845,000.00
– To get a property No. 31 M/M Way N8,552,000.00
– To get property No. 33 (Gidan Umaru Dangari) N9,420,000.00
– To get a land at Kuje Abuja N1,850,000.00
– To get block A2 of property 28 (Main House) N4,150,000.00
– To get 40 Plots of land W/Jabbe N3,812,766.00
All the combined value of N28,629,766.00 which is well over his share with N1,194,903.5 as such he is to refund same to the estate
2. ALIYU – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get property No. 21 Nepa road N2,500,000.00
– To get property No. 24 Numan Road N12,855,000.00
– To get 1/15 of Land at FGGC Yola N3,000,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get property 10 Demsawo N1,305,000.00
– To get 1/2 of A1 of property 28 main house with Ahmed N3,452,500.00
All at a combined value of N25,620,266.00 which is less than his share with N1,814,596.50 as such he is to receive same to the estate.
3. BASHIRU – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get ground floor of property 1 Zaranda Street N17,128,000.00
– To get 1/15 of the land at FGGC Yola N3,000,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get shop no. 3, 4 and 5 of property 1 Zaranda N2,380,000.00
All at a combined value of N26,320,766.00 which is less than his share with N1,114.096 such he is to receive same to the estate.
4. ABDULLAHI – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get Property No. 19 Mokolo Street, J/Yola N2,043,000.00
– To get 2/3 of property 30 cliff bookshop N8,133,333.32
– To get 2/3 of Shinge guest in Numan N6,200,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get 2/15 of FGGC Plot Yola at N6,000,000.00
All the combined value of N26,189,099.32 which is less than his share with N1,245,763.18 as such he is to receive same to the estate.
5. AMINU – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get ½ of Property No. 6 at M/M Way J/Yola N4,273,333.33
– To get property at Danmarke Kano (Gidan Iyali) N4,760,000.00
– To get 1/15 of FGGC Plot at N3,000,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
All at a combined value of N25,846,099.33 which is less than his share with N1,588,763.17 as such he is to get cash of N1,588,763.17 from the estate.
6. KHALIFA – His share as a son is N27,434,862.50 he is to get the following properties as his share:-
– To get 1/3 of Property No. 6 of M/M Way J/Yola with Aminu & Ahmed N14,273,333.33
– To get 1/15 of FGGC Plot Yola N3,000,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get block B1 of property 28 Main house N2,615,000.00
All at a combined value of N27,901,099.33 which is well over his share with N466,236.83 as such he is to refund same to the estate.
7. AHMED – His share as a son is N27,434,862.50 he is to get the following properties as his share :-
– To get 1/3 of Property No. 6 at M/M with Aminu and Khalifa to share equally N14,273,333.33
– To get property at Danmarka 2 Kano N4,050,000.00
– To get 1/15 at FGGC Yola plot at N3,000,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get 1/2 of A1 of property 28 main house with Aliyu N3,452,500
All at a combined value of N28,588,599.33 which is well over his share with N1,153,736.82 as such he is to refund same to the estate.
8. ABUBAKAR – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get first floor of property 1 both wings at N13,702,400.00
– To get 2/15 of FGGC plot at Yola N6,000,000.00
– To get shop 6, 7 and 8 of property 1 at N2,440,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get Block B2 of property 28 main house N1,140,000.00
All at a combined value of N27,095,166.00 which is less than his share with N339,696.50 as such he is to receive same to the estate.
9. YUSUF – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get 2nd floor of property 1 both wings N11,989,600.00
– To get shops 9, 10, and 11 of property 1 at N1,830,000.00
– To get store C of property 1 at N430,000.00
– To get generator room B property 1 at N105,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
– To get 2/15 of FGGC Plot Yola at N6,000,000.00
– To get Block B3 of Property 28 main house N1,350,000.00
– To get block B4 of property 28 main house N110,000.00
All the combined value of N26,027,366.00 which is less than his share with N1,407,496.5 He is to receive same to the estate.
10. MUJAHID – His share as a son is N27,434,862.50 he is to get the following properties as his share:-
– To get 2/3 of property No. 25 Mubi/Ilorin Street N21,566,666.66 with Naja’atu
– To get 40 plots of land at W/Jabbe N3,812,766.00
All at a combined value of N25,379,432.66 which is less than his share with N2,055,429.84 as such he is to receive same from the estate.
11. NAZIFI – His share as a son is N27,434,862.50 he is to get the following properties:-
– To get 2/3 of property at Hotoro GRA N25,800,000.00
– To get 40 plots of land at W/Jabbe N3,812,766.00
All at a combined value of N29,612,766.00 which is well over his share with N2,177,903.50 as such he is to refund same to the estate.
C. DAUGHTERS
1. SAFARATU – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get ½ of properties at No. 2 Zaranda Street with Rukaiya at N6,325,000.00
– To get shop 12, and 13 of property 1 N1,220,000.00
– To get small Hall Block at property 1 N500,000.00
– To get office 2 block D property 1 N195,000.00
– To get single room 1 and convenience 1 property N340,000.00
– To get 1/15 of FGGC Plot Yola at N3,600,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
All at a combined value of N14,519,574.50 which is well over her share with N802,143.25 as such she is to refund same to the estate.
2. RUKAIYYA – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get ½ of property 2 Zaranda Street with Safaratu at N6,325,000.00
– To get shop 14, and 15 of property 1 Zaranda N1,230,000.00
– To get large hall block D property 1 Zaranda N740,000.00
– To get office 1 block D property 1 Zaranda N255,000.00
– To get single room 2 and convenience Zaranda N340,000.00
– To get 1/15 of FGGC Plot Yola at N3,000,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
All at a combined value of N14,749,574.50 which is well over her share with N1,032,143.25 as such she is to refund same to the estate.
3. HABIBA – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get ½ of vacant 1 land of property 1 to share with Maryam and Aisha at N10,900,000.00
– To get office 1 and 2 of section 1 property 1 N960,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.00
All at a combined value of N14,719,574.50 which is well over her share with N1,002,143.25 as such she is to refund same to the estate.
4. MARYAM – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get 1/3 of vacant land of property with Habiba and Aisha at N10,900,000.00
– To get shop 1 of property 1 N640,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
All at a combined value of N14,399,574.50 which is well over her share with N682,143.25 as such she is to refund same to the estate.
5. AISHA – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get 1/3 of vacant land of property 1 to share with Habiba and Maryam N10,900,000.00
– To get shop 2 of property 1 N710,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
All at a combined value of N14,469,574.50 which is well over her share with N752,143.25 as such she is to refund same to the estate.
6. ZAINAB – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get property No. 15 M/M N1,700,000.00
– To get ½ of property tsami yan Boka (Makaranta) Kano (with Hauwa) N9,925,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
All at a combined value of N14,484,574.50 which is well over her share with N767,143.25 as such she is to refund same to the estate.
7. HAUWA KULU – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get property No. 7 at Bajam Street Jimeta N705,000.00
– To get property No. 8 at Bajam Street Jimeta N435,000.00
– To get ½ of property tsamiyan Boka Makaranta Kana with Zainab N9,925,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
All at a combined value of N13,924,574.50 which is well over her share with N207,143.25 as such she is to refund same to the estate.
8. HASIYA – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get property 5 Army Barracks road Jimeta N10,850,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
– To get 1/15 of Plot of FGGC Yola at N3,000,000.00
All at a combined value of N16,709,574.50 which is well over her share with N2,992,143.25 as such she is to refund same to the estate.
9. ZAINAB (ABU) – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get property No. 20, 52 Muri Street N980,000.00
– To get property No. 34 Hayin Gada N2,000,000.00
– To get property No. 36 Luggere N975,000.00
– To get 30 plots of land at W/Jabbe N2,859,574.50
– To get block A3 of property 28 main house N1,050,000.00
– To get block A4 of property 28 main house N138,000.00
– To get 1/15 of FGGC Plot Yola at N3,600,000.00
All at a combined value of N11,002,574.50 which is less than her share of N2,714,856.75 to receive same from the estate.
10. HAJARA – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get 1/3 of property Cliff bookshop with Abdullahi N4,066,666.66
– To get 1/3 Shimba guest inn at N3,100,000.00
– To get property 35 Margale Street N1,520,000.00
– To get property at Gembu N2,899,250.00
– To get 30 plots at W/Jabbe N2,859,574.50
All at a combined value of N14,445,49.16 which is less than her share with N728,059.91 as such is to receive same from the estate.
11. NAJA’ATU – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get 1/3 of No. 25 with Mujahid N10,783,333.33
– To get 30 plots of land at W/Jabbe N2,859,574.50
All combined value of N13,642,907.83 which is less than her share with N74,523.42 as such she is to receive same from the estate.
12. NAZIFA – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get ½ of property at Hotoro GRA with Nazifi N12,900,000.00
– To get 30 plots at W/Jabbe N2,859,574.50
All at a combined value of N15,759,574.50 which is well over her share with N2,042,143.25 as such she is to refund same to the estate.
13. HAFSAT – Her share as a daughter is N13,717,431.25 is to get the following properties:-
– To get property 29, Benin Street N8,650,000.00
– To get 30 plots at W/Jabbe N2,859,574.50
All at a combined value of N11,509,574.50 which is less than her share with N2,207,856.75 as such she is to receive same to the estate.
This is the entire 1st phase distribution of the estate of Late Alh. Musa Gobe, done in accordance with Q4:11
RIGHT OF APPEAL
Whoever is dissatisfied with this distribution has a right of appeal to the Sharia Court of Appeal Yola within 30 days from today.
Signed
Hon. Judge
15/5/2017”
However, at page 45 of the record of appeal, the proceedings of the trial Court reads:
“Today the 15/5/2017 some of reporters and respondents are in Court and they speak Hausa Langauge, Umar Abubakar for the proceedings. Ahmed Isa with H. B Bakari for the reporter Abubakar Ali and H. A Isa for the 1st – 7th respondent
Isa: Your worship the case is for distribution and we are ready.
Ali: We are also ready.”
Aggrieved by the decision of the trial Court the appellants appealed to the lower Court. The lower Court dismissed the appeal on the ground that the appellants were represented by counsel and the counsel adopted the valuation report. Upon being further aggrieved by the decision of the lower Court, the appellants appealed to this Court vide the original notice of appeal filed on 6th/12/2017. The amended notice of appeal was filed on 6/06/2019 and deemed properly filed on 10/06/2019. It contain ten (10) grounds of appeal. The five (5) additional grounds of appeal filed on 6/06/2019 and deemed on 10/06/2019 were incorporated in the amended notice of appeal.
At the hearing of the appeal on 9th of June, 2022 Aliyu Umar of counsel adopted the appellants amended brief of argument filed on 6/06/2019 and deemed on 10/06/2019. Learned appellants’ counsel also adopted the appellants’ reply brief, filed on 19/03/2018. It’s a reply to the 6th-12th respondents’ brief. He urge the Court to allow the appeal and set aside the decision of the lower Court.
The Court registrar had earlier informed the Court that the 6th–12th respondents were served with a hearing notice through their counsel A. A. Jatau on 8/06/2022 via phone call and text message on his phone number 08038628690. Pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2021 the 6th-12th respondents’ brief of argument filed on 7/03/2018 was deemed as duly argued. H. B. Bakori who appeared for the 1st–5th and 13th respondents, he informed the Court that he did not file any brief and he align himself with the 6th–12th respondents’ brief.
From the ten (10) grounds of appeal the appellant raised four issues for determination thus:
1. Whether the lower Court was right under Islamic Law when it did not avert it mind to the absence of fundamentals to a valid judgment in the trial Courts proceedings. (Distilled from ground 6)
2. Whether the appellants have no right to raise the issue of “Al Gabnu” (Property grossly under valued or over valued) before the lower Court. (Distilled from ground 1 and 7).
3. Whether it is proper for the lower Court to refuse to take cognizance of rules of valuation as well as the modes of distribution of the estate as enshrined under sharia (Distilled from ground 5, 8 and 9).
4. Whether the lower Court is right when it affirmed the decision of the trial Court without taking cognizance of non-observance of the mandatory principle of Al-Izar to exist in the trial Courts judgment. (Distilled from grounds 4 and 10)
It is clear that no issue has been raised on from grounds two and three. It is settled law that where there is no issue covering a ground of appeal, the ground is deemed abandoned and must be struck out. Accordingly, grounds two and three of the grounds of appeal are struck out.
The 6th to 12th respondents formulate two issues for determination thus:
1. Whether the lower Court had considered the record of appeal before it, if yes whether it is proper for the appellants to raise this issue for the first time before the Honurable Court of Appeal without the leave of Court.
2. Whether the lower Court was right to dismiss the appellants’ appeal and affirm the decision of the trial Court and if yes whether the appellant can argue ground four and five without the leave of the Honourable Court of Appeal.
It is settled in a plethora of cases that the Court is not bound by the issues formulated by the appellant or the respondent. The Court has the power to reframe any issue submitted by the parties as far as it arise from the ground of appeal and it is such that when decided will affect the result of the appeal. Moreso the Court of Appeal where it forms an opinion that the consideration of a sole issue is enough to dispose of the appeal, it will be under no obligation to consider all the other issues that had been raised.
In this instant case, issue four of the appellants’ brief deals with Al-Izar, which touches on the validity of the entire proceedings. I shall therefore in the circumstance proceed to consider issue four thus:
“Whether the lower Court is right when it affirmed the decision of the trial Court without taking cognizance of non-observance of the mandatory principle of Al-Izar to exist in the trial Courts judgment.”
The appellants’ counsel submitted that there was no Al’Izar administered to the parties or their counsel at the conclusion of the proceedings before the trial Court entered its judgment. He referred to pages 46-61 of the record of appeal. And that under Islamic law it is trite that every judgment shall contain al’izar with attestation of two men of integrity. He referred to the authority of Ihkamul Ahkam a commentary of Al-Tuhfatul Hukkam at page 21.
21; “ … “
English Translation
“Before a judgment is delivered there must be established Izar (exhaustion of parties as to the closure to produce further witness), with attestation of two men of integrity”
He submitted further that it is also trite under Islamic law that any judgment of made without Izar it is void because it is a condition precedent to a valid judgment. The author of Bahjah a commentary of Tuhfatul Al-Hukkam volum 1 page 64 says:
“ … “
Meaning:
“If judgment is entered without Izar such judgment is void according to the mentors of Maliki School of law and the said judgment is liable to be set aside because it is condition precedent to its validity”.
Learned appellants’ counsel also referred to the Islamic book Dasuki a commentary of Mukhtasar Khalil vol. 4 page 148 which says:
“ … “
Meaning:
“Izar is Mandatory requirement without which a judgment is void and it shall be set aside and trial has to be commenced de no vo”
I have perused the 6th to 12th respondents’ brief of argument and I could not lay hands on any argument with regards to Izar. The failure of the respondents to reply to this fundamental issue will amount to the respondents being deemed, to have conceded the issue raised and argued in the appellants’ brief of argument. I have perused the entire record of proceedings of the trial Court, it is evident that the trial Court did not apply the principle of Izar before its judgment/distribution of the Estate of late Alhaji Musa Gobe. See pages 45–61 of the record of appeal. I am on the same page with the submissions of the appellants’ counsel on the principle of Izar. But for emphasis the principle of Al-Izar in Arabic:
…
It refers to the last excuse allowed parties in Sharia proceedings to say anything before the Judge pronounces his verdict or judgment. It usually takes the form of a question from the Judge to the litigants in the presence of at least two unimpeachable witnesses and the response of the litigants to the questions put to them shall be recorded accordingly.
…
Al-Izar is a fundamental requirement of procedure in Islamic law to be applied in every judicial proceedings. Failure to observe the procedure vitiates the proceedings and the judgment delivered is a nullity. There are a plethora of judicial authorities and pronouncements on Al’Izar. In the case of Hakimi Boyi Ummaru v. Aisha Bakoshi (2006) 3 SLR (Pt. 1) Coomasie, JCA (as he then was) described Al-Izar as: “…akin to allocates in criminal trial, in Islamic law it is quite necessary. It has to be done at the end of trial and before judgment is declared. Failure by any Court to do so would vitiate proceedings and judgment delivered without Izar would be null and void”
In other words, where a proceeding of a Court is lacking this fundamental procedure, the judgment is a nullity and liable to be set aside. In Nasiru Alhaji Muhammad v. Haruna Muhammadu & 1 Other (2001) 6 NWLR (Pt. 708) 104 the Court of Appeal stated thus:
“The principle of Al’Izar in Islamic law is like allocutus in English Criminal Justice which must be conducted before an accused person is sentenced before and/or conviction. “A-Izar” in Islamic law goes beyond that. It is so fundamental that failure of the Court to apply it at an appropriate time would make the decision of that Court a nullity. It must be applied clearly before the decision or judgment. It enables each party to go over or ventilate its own case so that no party should say in future that he was not allowed to present his case by the Court”.
See Wangara v. Tsamiyar Kara (2006) 3 SLR (Pt.1) 168. And in the case of Suleiman v. Isyaku & 6 Ors. (Unreported) Appeal No: CA/K/1426/86 delivered on 5/2/1987 A. B. Wali JCA (as he then was) put it succinctly thus:
“It is a mandatory principle of Islamic law that no one shall be condemned without being afforded the opportunity of being heard. At the end of the parties’ cases, the Court shall ask them whether they have anything more to say before the Court pronounces its judgment. This is what is called Al-Izar something having similarity with allocutus”
See also Mamman Dan Buhari v. Hajo Usman (unreported) Appeal No: CA/K/171/S/92 delivered on 30/06/1994.
The case of Nasiru Alhaji Muhammadu v. Haruna Secretary & Anor. (2013) 1 SQLR (Pt. 111) 44, a case which is on all fours with the instant one Coomasie JCA (as he then was) stated thus:
“…Both lower Courts in the appeal at hand had closely observed the principles of Al-Izar to my admiration”
It is a case which involves the distribution of the estate of the deceased.
The issue is resolved in favour of the appellants. The decision of the lower Court is not consistent with the principles of Islamic law in confirming the distribution of the estate made by the trial Court without applying the principle of Al-Izar. Although the trial Court did a good job when it distributed the estate of the deceased after admitting in evidence the amended inventory report and the valuation report. Its distribution cannot be faulted except that it failed to apply the mandatory procedure of Al-Izar before the distribution and that failure has nullified the entire proceedings. The lower Court was in error to have affirmed the judgment of the trial Court. We in this Court have no option other than to allow the appeal and consequently set aside the judgment of the lower Court which affirmed the judgment of the trial Court. Both the judgment of the trial Court and the lower Court are infected with the same virus of non-compliance with the mandatory procedure of Al’Izar.
The suit is remitted back to the Honourable Grand Khadi of Adamawa State for trial de novo. However, in the interest of justice which is of paramount consideration in Sharia. Having regard to the length of time which had elapsed since the distribution of the estate. I advice that the Honourable Grand Khadi should in the alternative suggest reconciliation or settlement out of Court to the parties. Allah (SWT) said in the Holy Quran that the believers are but a single brotherhood so make peace and reconciliation between your two (contending) brothers and fear Allah, that you may receive mercy.
The Prophet (SAW) said reconciliation is permissible among the muslims except reconciliation that makes unlawful what is lawful and lawful what is unlawful. Ihkam Al-Ahkam provides that; if disputes become too intricate or there appears a hitch, the litigants are called upon to agree to conciliation (Sulh). But if it is a straight forward case that shall not be so, as long as one does not fear any trouble through passing judgment on the people who are blood relations.
In the end, the appeal succeeds. No order as to cost.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother A. M. TALBA JCA. I agree with the reasoning and conclusion that this appeal succeeds and is hereby allowed. Matter refers back to Grand Kadi Adamawa. I abide by all the consequential orders in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: My learned brother ABUBAKAR. M. TALBA, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I have nothing more to add. I abide by the conclusion reached therein.
Appearances:
A. M. Yofo, Esq. For Appellant(s)
Abubakar Ali, Esq. For Respondent(s)
