KAUGAMA v. KAUGAMA (2022)

KAUGAMA v. KAUGAMA

(2022)LCN/16989(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, January 31, 2022

CA/K/575/S/2017

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ABDULHADI UNGUWAR JIBRIN KAUGAMA APPELANT(S)

And

SABITU UNGUWAR JIBRIN KAUGAMA RESPONDENT(S)

RATIO

THE CONDITION TO BE MET FOR A GIFT TO BE COMPLETE AND VALID UNDER ISLAMIC LAW

THE PRINCIPLE OF HE WHO ASSERTS MUST PROVE IN ISLAMIC LAW

It is an established principle under Islamic law that he who assets must prove and proof in Islamic law in respect of proprietary actions can be done by calling at least two male unimpeachable witnesses or the evidence of one male unimpeachable witness and two female witnesses or one male witness plus one female witness and a claimant’s oath or the evidence of one male witness and the oath of claimant. See MINTAR VS. KORI (1989) 1 NWLR (PT. 100) 716; GARBA VS. DOGON YARO (1991) 1 NWLR (PT. 165) 103 and GULMA VS. BAHAGO (1993) 1 NWLR (PT. 272) 766. Islamic law has set a high moral standard on witnesses called upon to testify in that it is expected that witnesses must have a high moral integrity before they are competent to testify. Thus, a witness previously declared Fasiq (transgressor), or a known liar or a person who has committed adultery or a drunkard are not qualified to testify and where he had already given evidence, the evidence will be rejected and discountenanced by a Court. The high standard of integrity required of a witness under Islamic law makes oath taking by a witness unnecessary and strongly prohibited. See MAIGARI VS. BIDA (2002) ALL FWLR (PT. 88) 917. PER LAMIDO, J.C.A.

WHETHER OR NOT A GIFT IS COMPLETE ONLY AFTER DELIVERY OF POSSESSION BY THE DONOR AND TAKING OF POSSESSION BY THE DONEE UNDER ISLAMIC LAW

Under Islamic law, a gift is complete only after delivery of possession by the donor and taking of possession by the donee. Thus the declaration of gift and its acceptance must be accompanied by possession of the property. Where the donee fails to take possession of the property during the lifetime of the donor, the gift becomes void and unenforceable and there is no distinction on whether the parties are related or not. In SAFETI & ORS. VS. SAFETI & ANOR. (2006) LPELR 7579 AT 13 – 14; Muhammad, JCA (as he then was) quoting a passage from Ihkamul Ahkami stated thus:-
“If a father makes a gratuitous gift of a thing to his sons big and small who was introduced by the father and the big son takes practical/actual possession of the thing given to the small one, the gift is complete. But where the big son takes actual possession of the thing given or (where even) he did not take possession and the father (donor) dies, the whole gift becomes void. On the other hand, where the big son takes possession of the thing given to him and the one given to his small brother or vice versa the gift is complete in both situations. Thus a gift becomes valid in law once it is validly made and the donee has taken possession thereof”. PER LAMIDO, J.C.A.

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Sharia Court of Appeal, Dutse delivered on 16th May, 2017. The Appellant as plaintiff instituted an action before the Upper Sharia Court, Hadejia, Jigawa State seeking for the distribution of their late father’s estate. In the course of the proceedings the Respondent as defendant counter claimed that one of the farmlands mentioned by the Plaintiff/Appellant was given to him by their later father before his death; The trial Court ordered the Defendant/Respondent to bring witnesses to the gift and at the conclusion of the evidence, the trial Court found that one of the conditions of a valid gift has not be satisfied and voided the gift.

Dissatisfied with the decision of the trial Court, the defendant appealed to the Sharia Court of Appeal, Dutse. The Court below set aside the decision of the trial Court and affirmed the gift of the farmland to the Appellant.

Dissatisfied with the decision, the Respondent appealed to this Court by filing his notice of appeal containing two grounds of appeal. The grounds of appeal are as follows:-

GROUND ONE
The Sharia Court of Appeal erred in law when it affirmed the gift of one farmland which is more than half of the estate which was vitiated by lower Court.
GROUND TWO
The Sharia Court of Appeal Jigawa State erred in law when it set aside the decision of the lower Court without due consideration of law.

The Appellant filed his brief of argument on 28/11/2017 but deemed on 13/07/2021. From the Appellant’s brief, two issues for determination were formulated. The issues are:-
1. Whether or not the Sharia Court of Appeal Jigawa State was right when it affirmed the gift of farmland which is more than half of the estate left by the deceased father which was vitiated by the upper Sharia Court, Hadejia.
2. Whether or not the Sharia Court of Appeal Jigawa State was right when it set aside the decision of Upper Sharia Court, Hadejia without due consideration of law.

The Respondent’s brief was filed on 02/01/2018 but deemed filed on 13/07/2021. The Respondent’s brief also contained two issues for determination couched thus:-
1. Whether the Sharia Court of Appeal Jigawa State was right when it affirmed the gift of one farmland to the Respondent by the donor Late Mal. Nuhu which was vitiated by the Upper Sharia Court, Hadejia.
2. Whether the Sharia Court of Appeal, Jigawa State was right when it set aside the decision of Upper Sharia Court Hadejia.

In arguing issue one, learned Counsel for the Appellant, S.I. Umar, Esq. submitted that the Respondent did not take over the farm in dispute until after the death of their deceased father and this fundamental issue was not taken into consideration by the Court below. For a gift to be valid under Islamic law, the donee must take possession of the property before the death of the donor. He referred to Risala: Chapter on gifts and preemption at P. 552 and Ihkamil Ahkam Chapter on Gift and Charity at P. 217. Having taken possession of the subject matter of the gift after the death of the donor, it follows therefore that the gift is void. The Court below was therefore wrong to confirm the gift.

On issue two, he submitted that the Court below reliance on the authority of Bahaja Vol. P. 25 to set aside the decision of the trial Court is erroneous as the Chapter is dealing with Lian which has no relevance to the claim before it. He also stated that where a person becomes matured, he can deal with his property unhindered even by his father but where he has a defect even though matured, the Court shall deal with his property and where he dealt with that property in such a state, the law will invalidate it. He referred to Ihkamul Ahkam commentary on Tuhfatul Al-Ahkam Chapter on Rushud P. 237. He then submitted that the gift made by the donor is invalid for it was made at the time the donor is incapable of making a gift. He urged the Court to allow the appeal and restore the decision of the trial Court.

In arguing issue one, learned Counsel for the Respondent A.Y. Umar, Esq. submitted that the Court below was right to have set aside the decision of the trial Court and confirm the gift made to the Respondent by their late father. He referred to ADAMU VS. IBRAHIM (2016) 4 SQLR (PT. 1) 143. He also argued that since the Respondent took possession of the farmland in dispute during the lifetime of the donor, the gift is complete.

He also submitted that there are three main ingredients to a valid gift, thus:-
1. There must be a declaration of the gift by the donor.
2. The donor must accept it either by himself or through an agent.
3. The possession of the gift should be delivered by the donor to the donee.

He referred to Sharia the Islamic Law by Abdurrahman D01 at PP. 334. He concluded that bearing in mind the evidence adduced at the trial, the Court below was right to confirm the gift of the farmland to the Respondent.

On issue two, he submitted that the Appellant had an opportunity to challenge the gift made to the Respondent during the lifetime of the donor on the ground that the donor had no sound mind to make a valid gift in Islamic law but failed to do so, that signified his tacit approval and the Court below was therefore right to confirm the gift.

I have taken a careful look at the issues for determination formulated by parties to this appeal and in my humble view a single issue for determination can resolve the points and arguments arising from this appeal. The issue for determination is:-
Whether from the evidence adduced at the trial Court the Sharia Court of Appeal was right to set aside the decision of the trial Court and confirm the gift of the farmland to the Respondent.

The Appellant’s claim before the trial Court was a result of an order of retrial given by the Sharia Court of Appeal for the distribution of the estate of their late father which consisted of 17 farmlands. He also stated that their late father left behind 3 wives and 11 children 8 females and 3 males. The Respondent counter claimed and stated that one of the farmlands was given to him by their late father before his death. The Appellant presented witnesses who testified that their late father Malam Nuhu died and the heirs he left behind.

The Respondent also presented 3 witnesses in proof of his counter-claim and tendered a letter evidencing the gift of the farmland to him. The Appellant responded that at the time of writing the letter, their late father had a mental problem as a result of an accident he had. He also presented witnesses who testified that their father has a mental problem as a result of an accident he had. The trial Court then found that on preponderance of evidence, the evidence adduced by the Appellant on the mental capacity of their late father at the time of making the gift weighed higher than the evidence of gift given by the Respondent and also coupled with the fact that the Respondent did take possession of the farmland during the lifetime of their father, the trial Court held that the gift is void and ordered the distribution of the 17 farmlands to the heirs of Late Malam Nuhu.

On appeal, the Court below reviewed the evidence of gift tendered and concluded that the Respondent was able to prove the gift of the farmland made to him by his late father and confirmed same making an order to the trial Court to distribute the remaining 16 farmlands to the heirs of the deceased.

Gift or Hibah is the act of transferring ownership of a property of a living person to another living person without any consideration. Islamic law permits transfer of property to another as a gift during the lifetime of the donor or may cause the transfer of a property to another person after his death through a will. The former is what is known as disposition inter vivos and the latter is called testamentary disposition. Disposition inter vivos or Hibah is unfettered as to its quantum unlike a testamentary disposition which is limited to not more than 1/3 of the deceased’s estate. See TALLAHI VS. ADABKA (2018) LPELR 44507.

For a gift to be complete and valid under Islamic law, certain conditions must exist. These include:-
(a) A declaration by the donor or an offer or manifestation of a wish to make a gift. The declaration must be clear, unambiguous and either oral or written.
(b) There must be an acceptance by the done (Mauhub lahu) or his agent expressly or impliedly.
(c) There must be delivery or taking of possession of the subject matter of the gift actually or constructively.
See SONG VS. SONG (2001) ALL FWLR (PT. 44) 447 and IBRAHIM & ORS. VS. GAMBO & ANOR. (2017) LPELR 44616.

Now, the Appellant’s Counsel contended that it is in evidence that the Respondent did not take possession of the farmland in dispute until the death of their father and this made the gift void and the Court below failed to make any pronouncement on this. The Respondent argued that the Court below made a finding that the Respondent took possession of the farmland during the lifetime of the donor.

It is an established principle under Islamic law that he who assets must prove and proof in Islamic law in respect of proprietary actions can be done by calling at least two male unimpeachable witnesses or the evidence of one male unimpeachable witness and two female witnesses or one male witness plus one female witness and a claimant’s oath or the evidence of one male witness and the oath of claimant. See MINTAR VS. KORI (1989) 1 NWLR (PT. 100) 716; GARBA VS. DOGON YARO (1991) 1 NWLR (PT. 165) 103 and GULMA VS. BAHAGO (1993) 1 NWLR (PT. 272) 766. Islamic law has set a high moral standard on witnesses called upon to testify in that it is expected that witnesses must have a high moral integrity before they are competent to testify. Thus, a witness previously declared Fasiq (transgressor), or a known liar or a person who has committed adultery or a drunkard are not qualified to testify and where he had already given evidence, the evidence will be rejected and discountenanced by a Court. The high standard of integrity required of a witness under Islamic law makes oath taking by a witness unnecessary and strongly prohibited. See MAIGARI VS. BIDA (2002) ALL FWLR (PT. 88) 917.

Under Islamic law, a gift is complete only after delivery of possession by the donor and taking of possession by the donee. Thus the declaration of gift and its acceptance must be accompanied by possession of the property. Where the donee fails to take possession of the property during the lifetime of the donor, the gift becomes void and unenforceable and there is no distinction on whether the parties are related or not. In SAFETI & ORS. VS. SAFETI & ANOR. (2006) LPELR 7579 AT 13 – 14; Muhammad, JCA (as he then was) quoting a passage from Ihkamul Ahkami stated thus:-
“If a father makes a gratuitous gift of a thing to his sons big and small who was introduced by the father and the big son takes practical/actual possession of the thing given to the small one, the gift is complete. But where the big son takes actual possession of the thing given or (where even) he did not take possession and the father (donor) dies, the whole gift becomes void. On the other hand, where the big son takes possession of the thing given to him and the one given to his small brother or vice versa the gift is complete in both situations. Thus a gift becomes valid in law once it is validly made and the donee has taken possession thereof”.
Also in the book of Risala it is stated at P. 552 thus:-
Meaning:
Gift, charity and endowment (waqf) are only properly constituted or complete upon taking of possession and where the donor dies before the donee takes possession of the property, then the property becomes part of inheritable estate of the donor.
Finally, in Irshadi Al-Salik commentary on Askari, it is stated thus:
Meaning:
Gifts are of two types and one of which serves to improve relationship and it is complete and valid upon a declaration, acceptance and taking possession. And the donor can be compelled to give up possession. Where the donee did not take possession of the property during the lifetime of the donor, the gift becomes void.

Now, the Respondent at the trial Court fielded three witnesses who testified that the donor (his father) gave him the farmland as a gift during his lifetime. He also tendered a letter evidencing such gift to the trial Court. However, the trial Court accepted the evidence of two out of the three witnesses presented by the Respondent. In Islamic law, evidence of two unimpeachable male witnesses is enough to prove the claim of a party. See TUKURWA VS. KWAKWA (1992) 2 NWLR (PT. 224) 449.

With respect to the document tendered, it is to be noted that since the document relates to a proof of a transaction relating to a transfer of property inter vivos, it is admissible in Islamic law. See KABARA VS. KABARA (2006) 3 SLR (PH) 155.

But the contention of the Appellant’s Counsel here is that there is no evidence that the Respondent took up possession of the farmland in the lifetime of their late father (the donor). It is to be noted that the evidence on the record of appeal can be found at P. 51 where the Respondent stated that he cultivated the farmland a year preceding the death of their father and the year he died, whereas, the Appellant stated that the Respondent only cultivated the farm after the death of their father. However, the Court below held as follows:-
“The confession of the gift by the heirs is also evidence through the lower judge didn’t put confession witnesses as such this Court affirmed the gift of farm by Mal. Nuhu to Sabitu Dependent/ Appellant at Gwauro village since it was done by donor during his lifetime and possession was taken during that time.”

Now, the basis of confirming the gift of the farm to the Respondent by the Court below is on the fact of taking possession of the farm by the Respondent before the death of their father. But the question is how did the Court below come to that conclusion? At the trial, what we can find is only the ipsi dixit of the Respondent that he cultivated the land a year preceding the death of the donor and the year he died. This was denied by Appellant who stated that the Respondent cultivated the land after the death of the donor. Apart from this assertion and denial, there is no independent evidence in proof of taking possession. It is trite that under Islamic law parties to a suit are not competent witnesses. They can only call independent witnesses in proof of their case. See USMAN VS. KAREEM (1994) LPELR 3430 and IBRAHIM & ORS VS. IBRAHIM & ORS (2020) LPELR 51310. Therefore, there is no evidence that the Respondent took possession of the farm before the death of the donor. The Court below was therefore wrong to hold that the Respondent took possession during the lifetime of the donor.

On the admission by some of the heirs, it is to be noted that their admission (iqrar) cannot bind the other heirs who did not admit to the knowledge of the gift. What is in contention is not the declaration of the gift by the donor. A declaration of the gift by the donor and its acceptance by the donee cannot translate to an outright disposition of the property without possession. Taking of possession of the property subject of gift is an important condition to its validity and where evidence of taking possession during the lifetime of the donor is lacking, the gift fails and property must become part of the estate of the deceased for inheritance among his heirs.

In the circumstances, even on this ground alone, the decision of the Court below cannot stand. The appeal is meritorious and is accordingly allowed. The decision of the Court below confirming the gift of the farmland to the Respondent is hereby set aside and the decision of the trial Court which is based on the evidence adduced is restored and affirmed. With the orders contained therein, parties to bear their own cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

USMAN ALHAJI MUSALE, J.C.A.: I have had the benefit of reading in advance the lead judgment of my learned brother ABUBAKAR MU’AZU LAMIDO, JCA 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 conclusions reached therein.