KOLO & ORS v. ESTATE OF ALHAJI MAMMAN KOLO (2022)

KOLO & ORS v. ESTATE OF ALHAJI MAMMAN KOLO

(2022)LCN/17003(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, July 05, 2022

CA/ABJ/374/S/2020

Before Our Lordships:

Saidu Tanko Hussaini 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. HAJIA HANNATU MOHAMMED KOLO 2. MRS. FATIMA KOLO BUBA 3. MOHAMMED ANAS KOLO 4. SULEIMAN IMAM KOLO 5. MU’AZU ABBA KOLO APPELANT(S)

And

ESTATE OF ALHAJI MAMMAN KOLO RESPONDENT(S)

RATIO

WHETHER OR NOT COST IS AWARDED AT THE DISCRETION OF THE COURT

Generally, the law is the cost follows events and it is awarded at the discretion of the Court whether or not specifically claimed by a successful party and like all other judicial discretion, it is to be exercised judicially and judiciously.
Ordinarily, a successful party is entitled to the award of costs in a case unless there are reasons for the Court to deprive him of same, which by authority of Obayagbona Vs. Obazee (1972)5 SC 246, Amira Nig. Ltd vs. Mal Nigeria Ltd (2001)17 NWLR (Pt. 742) 464 and Idam vs. Mene (2009)17 NWLR (Pt. 1169) 74, the Court needs to show. In the Respondent’s case, no costs were claimed and in the exercise of its judicial discretion to award costs which should follow events, the High Court did state the factors it considered in arriving at the sum of N50,000.00 awarded in favour of the Respondent as it simply and tersely decreed that:
‘cost is awarded to Defendant counter/claimant at N50,000.00’.
It is common knowledge now that an Appellate Court does not routinely interfere with the exercise of a discretion by a trial/lower Court except it is satisfied that the discretion was not exercised judicially, by considering the interest of both parties and weighing it evenly and judiciously; by showing sound judgment by considering relevant factors in order to arrive at a just case, arbitrarily. Efitiroroje Vs. Okpalefe II (1991)5 NWLR (Pt. 193) 517; Ideozu Vs. Ochoma (2006) ALL FWLR (Pt. 308) 1183, (2006)4 NWLR (Pt. 970) 364; Banna Vs. Telepower Nig. Ltd (2006) ALL FWLR (Pt. 334) 1813, (2006)15 NWLR (Pt. 1001) 198; Nwadiogbu vs. A.I.R.B.D.A (2010)19 NWLR (Pt. 1226) 364″. PER DANJUMA, J.C.A.

WHETHER OR NOT THE COURTS MUST PRONOUNCE ON ALL ISSUES RAISED OR BROUGHT BEFORE IT

WHETHER OR NOT THE JUDGE CAN RELY ON OTHER SOURCES OF LEGAL MATERIAL IN RESOLVING AN ISSUE BEFORE IT

There is nothing wrong with this. I mean there is nothing wrong for a Judge to rely on other sources of legal material so long as that effort would throw more light on the issue before the Court. In ACCESS BANK Vs. AGEGE LG & ANOR (2016) LPELR-40491, it was held that: –
“A Court is not limited to the case cited by Counsel in determining matters before the Court. The Court can rely on other sources of legal materials such as those derived from personal research and publications to support the Court in determining issues. There is no restriction on Court to limit itself to only cases cited by parties”.
I hold that the lower Court did well by going extra mile to conduct research and consult more authorities to enable it arrive at a just decision. No contradiction arose from the alleged authorless publication and other authorities cited and relied upon by the lower Court. It does not in any form go against the finding of the lower Court as stated at Page 91 of the Record of Appeal, thus:-
“No law, no culture or tradition will exclude a father from being a member of an immediate family of a person”. PER DANJUMA, J.C.A.

MOHAMMED DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sharia Court of Appeal, Federal Capital Territory, Abuja, delivered by Honorable Grand Kadi, Ibrahim Rufa’i Imam, Honourable Kadi Ibrahim Baba Gwaram and Honourable Kadi Aminu Aliyu Sa’adu on the 6th day of May, 2020. (Pages 83-93 of the Record of Appeal).

BRIEF STATEMENT OF FACTS
The Applicant before the trial Court was late Alhaji Mamman Kolo who was the biological father of late Honourable Justice Mohammed Mamman Kolo of the High Court of Federal Capital Territory, Abuja (the Deceased). The Deceased’s death benefits to the tune of N59,368,425.00 paid by the National Judicial Council (NJC) was held by the Trial Upper Area Court sitting at Kado to be part of the estate of the Deceased (Pages 41-47 of the Record of Appeal).

Appellant being dissatisfied with the ruling of the trial Court appealed to the Sharia Court of Appeal of the Federal Capital Territory, Abuja (Pages 1-4 of the Record of Appeal).

The judgment of the Sharia Court of Appeal, Federal Capital Territory, Abuja (lower Court) was delivered on the 6th day of May, 2020, wherein, the Appellants’ appeal was dismissed with cost of N300,000.00 against the 1st Appellant (Pages 83-93 of the Record of Appeal).

ISSUES FOR DETERMINATION
In their Brief of Argument which was filed on the 13th day of August, 2021 but deemed properly filed on the 10th day of February, 2022, by the Appellants’ Counsel Mr. Yusuf Umar Kagarko, Esq., Appellants raised the following five issues for the determination of this appeal: –
1. Whether the learned Khadis of the Sharia Court of Appeal, Abuja, were not wrong when they held that Quran 2 Vs. 180 did not state what constitute Tarika and that death benefit, forms part of the distributable estate of a deceased person. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the learned Khadis of the lower Court were not wrong when they failed and refused to make any finding on Grounds two and three of the Notice of Appeal and argued as issues two and three in the Appellants’ Brief of Argument dated the 20th day of February, 2020 respectively. (Distilled from Ground 2 of the Notice of Appeal).
3. Whether the learned Khadis of the Sharia Court of Appeal, Abuja Division were not wrong to have relied and acted upon an unidentified authority outside the Primary, Secondary Sources of Islamic Personal Law and Maliki School of thought. (Distilled from Ground 3 of the Notice of Appeal).
4. Whether the learned Khadis of the Sharia Court of Appeal, Abuja’s award of the sum of N300,000.00 as cost against the 1st Appellant is not excessive and consequently unwarranted in the circumstance of the case. (Distilled from Ground 4 of the Notice of Appeal).
5. Whether the judgment of the Sharia Court of Appeal, Abuja is liable to be set aside for failure of the learned Khadis to observe the mandatory practice of Al’lzar before pronouncing the Court’s judgment. (Distilled from Ground 5 of the Notice of Appeal).

On issue one, learned Counsel to the Appellants, Mr. Yusuf Umar Kagarko, Esq., argued that the learned Khadis of the Sharia Court of Appeal, Abuja were wrong to have dismissed the appeal and hold that the death benefit (Res in this suit) forms part of the distributable estate of the deceased and that Quran 2 Verse 180 did not state what constituted Tarika. He stated that indeed Quran 2 Verse 180 clearly stipulated properties that constitute Tarika/Estate. That the said Quranic verse is:-
“Bequest is prescribed for you when death approaches one of you, if he leaves behind wealth for parents and near relatives, according to usage, a duty incumbent upon those who guard against evil”.

Learned counsel submits for the Appellants that from the above verse, what constitute Tarika/Estate, is what a deceased leaves behind upon his/her demise, which are ascertainable and accessible during his/her lifetime. That the said death benefit is neither ascertainable nor accessible to the deceased during his lifetime and thus the deceased was not in a position to make any bequest or Wasiya with respect to the said death benefit in favour of another.

It was submitted that the Quran and the Sunnah of the Holy Prophet (PBUH) remain the only primary sources of Islamic Personal Law and serve as the yardstick by which other sources of Islamic Law are measured. He commends the case of Wali Vs. Ibrahim (1997)9 NWLR (Part 519) 160 at 167 Paras F. (CA). That it is trite position of the law that, whatever the Holy Quran dictates, as the main primary source of Islamic Law, remains binding on other sources of Islamic Law, thus recourse would only be had to the Sunnah of the Prophet (PBUH) and other secondary sources Qiyas and Ijma of Islamic Personal Law where a verse is unclear. That in this case however, the provision of the Holy Quran is not ambiguous rather it is clear and direct and as such it needs no further interpretation.

Appellants Counsel submits that the estate of a deceased Muslim referred to as ‘Tarika’ and what constitutes same, is drawn from the provisions of Qur’an 2 Verse 180, which expressly delineates same as what a deceased person leaves behind. He stated that the Appellants are not contending that a deceased person’s father cannot inherit him neither are they contending that he cannot make a valid bequest in favour of any of his siblings. That the Appellants’ position is whether the death benefit which could not be accessed, neither was it in the possession of or under the control of a deceased Muslim while he was alive, can constitute part of his distributable estate to be shared among his legal heirs and even proceed to make a bequest in favour of any person, in this case his sibling? Thus, Appellants’ Counsel submits for the Appellants that the death benefit which is the sum of N59,638,425.00 only, being the subject matter in dispute was not part of the properties of the deceased at the time he was alive and only came to the possession of his Next of Kin (5th Appellant) through his guardian (1st Appellant) after the demise of the deceased. Appellants’ Counsel argued that the death benefit having not been left behind by the deceased, same cannot be said to form part of his distributable estate, so much so that he could have made a bequest in contemplation that same would be satisfied from the said death benefit.

It was submitted that the Trial Upper Area Court from the outset erroneously assumed jurisdiction to proceed to distribute the death benefit of the deceased among his legal heirs when same did not form part of the distributable estate left behind by him as stated in Quran 2 Verse 180. That equally, the Sharia Court of Appeal, Abuja persevered in the same error when it arrived at the conclusion that Quran 2 Verse 180 did not state what constitutes ‘Tarika’ and as such the death benefit formed part of the distributable estate of the deceased. Further, was submitted for the Appellants that both Trial Upper Area Court and the Sharia Court of Appeal, Abuja respectively, exercised a jurisdiction they lacked, when they proceeded to fulfil the bequest/ Wasiya of N5,000,000.00 (Five Million Naira only) from the death benefit of the deceased, with the knowledge that the said bequest could not have been contemplated by the deceased to be satisfied from same, having not had the said death benefit in his custody or under his control as at when the said bequest was made. He urged this Court to resolve this issue in favour of the Appellants.

On issue two, learned Counsel to the Appellants posits that the crux here is the failure and refusal of the lower Court to make any findings on Grounds two and three of the Notice of Appeal and argued as issues two and three in the Appellants’ Brief of Argument dated the 20th day of February, 2020. He argued that the lower Court ought to have made a finding on Grounds two and three in the Appellants’ Brief of Argument, premised upon which the judgment of the lower Court was predicated. He stated that the lower Court failed to reckon with the Supreme Court’s decision in the case of Ayisa vs. Akanji (1995)7 NWLR (Pt. 406) 129 at 143-144, Para H-B, where the Apex Court held thus: –
“It is the duty of all Courts below the Supreme Court to pronounce on all issues raised or brought to their notice by the parties, and not to restrict themselves to one or more of the issues which in their opinion disposes of the case. This is necessary because of the danger of a higher Court disagreeing on appeal with the view held on that point or issue… “

Appellants Counsel further calls in aid the cases of Irolo Vs. Uka (2002)14 NWLR (Pt. 786) 195 at 225 Paras. D-H; and Egharevba Vs. Osagi (2009)18 NWLR (Pt. 1173) 299 at 310-311 Paras. H-A ratio 7, to establish his position that the lower Court ought to have made findings on issues/grounds two and three of the Notice of Appeal, before delivering its judgment in the substantive matter.

The Appellants Counsel argued that whilst the procedure under Islamic law gives the Court unfettered discretion to traverse the entire gamut of the case and apply the relevant law, its discretion does not obviate the duty of the Court to make findings on issues raised and argued by the parties flowing from the grounds of appeal. That at best, if the Court finds such issues irrelevant to the determination of the real issues before the Court, stating so, equally amounts to a determination of the issue so raised. That in the consideration and disposal of this matter, the lower Court ought to have made findings on the grounds and issues so raised by the Appellant, as it is akin to a condition precedent which must first be fulfilled before the Court assumes jurisdiction over the substantive matter before delivering its judgment. He cited the Court’s decision in GAMBARI Vs. GAMBARI (1990)5 NWLR (Pt. 152) 572, P. 587, where it was held thus: –
“The law is familiar with stipulations termed conditions precedent or condition subsequent… A condition precedent may provide for the happening of some event or performances of an act before, for example a contract can take off and become binding… The statute books are replete and such stipulations, so also are the law reports. Thus, where there is a non-compliance to a stipulated condition precedent for setting a legal process in Motion, any suit instituted in contravention of the precondition is incompetent and the Court is also incompetent to entertain the suit”.

It was stated that where a condition precedent is set for doing a thing in order for a Court to assume jurisdiction, failure to adhere to those conditions can strip the Court of jurisdiction and where such is the case, any action taken is an exercise in futility. He further cited the Inakoju Vs. Adeleke (2007)4 NWLR (Pt. 1025) 423 at 661, Paras D-E, where it was stated thus: –
“If a law provides for the doing of an act with conditions, the Courts have a duty to look into the matter to ensure that the conditions are fulfilled. It is a fallacy therefore to argue that the conditions do not matter and can consequently be ignored”.

Learned counsel to the Appellants state that in view of the above cited authorities, it is clear by now that the failure and refusal of the lower Court to make any findings on Grounds two and three of the Notice of Appeal, argued as issue two and three of the Appellant Brief of Argument is fatal to the entire decision of the lower Court having failed in fulfilling a condition precedent to the assumption of jurisdiction by the Court. It was further submitted that this failure on the part of the Court occasioned a miscarriage of justice, since the determination of the grounds and issues formulated had the capacity of rendering the determination of the main appeal otiose.

Finally, Appellants Counsel submits that case law requires that in all issues raised and argued by parties before the Court, it is incumbent on the Court to make specific findings on them and arrive at a decision one way or the other and failure to do so renders any decision of the Court a nullity which is liable to be set aside by an appellate Court. He urged the Court to resolve the issue in favour of the Appellants.

On issue three, learned Counsel to the Appellants submits that the Sharia Court of Appeal, Abuja is a creation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by virtue of the Provision of Section 260 (1) thereof. That the Sharia Court of Appeal, Abuja, as per Section 262 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) is also mandated to exercise jurisdiction over issues bothering on Islamic Personal Law and apply Islamic Law in the conduct of its proceedings and decisions to the exclusion of other types of law. He submits that it is trite that there are two Primary Sources of Islamic Law; the Quran and Hadith and two secondary sources, Ijma and Qiyas which applicability and binding nature is measured by reference to the primary sources. It was stated that in exposition of the primary sources of Islamic Law, there are four recognized schools of Islamic jurisprudence amongst which the Maliki school has been adopted as the only applicable school of thought in Nigeria to the exclusion of other schools of jurisprudence. That this position has been statutorily enshrined in Section 13 (a) of Sharia Court of Appeal Act Cap 550, 1960 Laws of the FCT Abuja as follows: –
“The Court, in the exercise of the jurisdiction vested in it by this Act, as regards both substantive law, practice and procedure, shall administer, observe and enforce the observance of the principles and provisions of:
(a) Islamic law of the Maliki School as customarily interpreted at the place where the trial of first instance took place;
(b) …
(c) …
(d) …

Appellants Counsel contended that in resolving the pertinent issue of whether the Respondent at the Sharia Court of Appeal, Abuja, falls into the category of persons to benefit from the death benefit of the deceased (having already posited that same did not form part of the inheritable estate of the deceased), the Sharia Court of Appeal, Abuja relied heavily on the definition of family, presumably from an unknown and authorless online book titled “immediate family law and legal definition”, and thereafter arrived at the conclusion that the scope of the term ‘immediate family’ had been widened to include different categories of people for the purpose of making the death benefit of the deceased inheritable. That this online book’s definition formed the fulcrum of the decision of the lower Court despite same not emanating from any of the primary sources, secondary sources of Islamic Law or from the opinion of any of the Maliki jurists as envisaged by both Section 262 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) and 13 (a) of Sharia Court of Appeal Act Cap 550, 1960 Laws of FCT, Abuja.

Appellants’ Counsel contended that the online book which had no affiliation with Maliki school of thought, but relied on by the lower Court was inapplicable and should be discountenanced with. That also the learned Khadis of the lower Court acted per incuria when they based the decision without reckoning the mandatory Provisions of Section 262 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and 13 (a) of Sharia Court of Appeal Act Cap 550, 1960 Laws of the FCT, Abuja.

Learned Counsel to the Appellants Mr. Kagarko, Esq., urged this Court to set aside the decision of the lower Court and resolve the issue in favour of the Applicants.

On issue four, learned Counsel submits for the Appellants that the underlying general principle necessitating the award of cost, flows from the notion that cost, follows event. That the principles governing the award of cost in the very recent case of Abayomi Vs. Saap-Tech (Nig.) Ltd. (2020)1 N.W.L.R (Pt. 1706) 453 at 512-513 Paras H-B, where it was held thus:-
“The last of the complaint by the Appellant under issue 4 is that the cost awarded in favour of the Respondent was excessive and arbitrary. By the authority of Coomasie Vs. Tell Comm. Ltd (Supra) cited by the Appellant’s Counsel, costs are not awarded to a successful party in a case, as a bonus or to punish an unsuccessful party.
Generally, the law is the cost follows events and it is awarded at the discretion of the Court whether or not specifically claimed by a successful party and like all other judicial discretion, it is to be exercised judicially and judiciously.
Ordinarily, a successful party is entitled to the award of costs in a case unless there are reasons for the Court to deprive him of same, which by authority of Obayagbona Vs. Obazee (1972)5 SC 246, Amira Nig. Ltd vs. Mal Nigeria Ltd (2001)17 NWLR (Pt. 742) 464 and Idam vs. Mene (2009)17 NWLR (Pt. 1169) 74, the Court needs to show. In the Respondent’s case, no costs were claimed and in the exercise of its judicial discretion to award costs which should follow events, the High Court did state the factors it considered in arriving at the sum of N50,000.00 awarded in favour of the Respondent as it simply and tersely decreed that:
‘cost is awarded to Defendant counter/claimant at N50,000.00’.
It is common knowledge now that an Appellate Court does not routinely interfere with the exercise of a discretion by a trial/lower Court except it is satisfied that the discretion was not exercised judicially, by considering the interest of both parties and weighing it evenly and judiciously; by showing sound judgment by considering relevant factors in order to arrive at a just case, arbitrarily. Efitiroroje Vs. Okpalefe II (1991)5 NWLR (Pt. 193) 517; Ideozu Vs. Ochoma (2006) ALL FWLR (Pt. 308) 1183, (2006)4 NWLR (Pt. 970) 364; Banna Vs. Telepower Nig. Ltd (2006) ALL FWLR (Pt. 334) 1813, (2006)15 NWLR (Pt. 1001) 198; Nwadiogbu vs. A.I.R.B.D.A (2010)19 NWLR (Pt. 1226) 364″.

It was submitted for the Appellants that the Supreme Court whilst elucidating on the classification of award of cost in the case of ENL Consortium Vs. D.B.N Ltd (2020) 8 NWLR (Pt. 1725)179 at 195, Para. E held as follows: –
“It needs to be stressed here, that award of cost by Courts can be classified into two ways (a) costs awarded according to judicial principles and (b) costs awarded in the exercise of a discretion on a particular fact… “

Learned Counsel to the Appellants submits that the award of the sum of N300,000 as cost against the 1st Appellant in a case involving distribution of the estate of a deceased person is excessive as the Sharia Court of Appeal, Abuja cannot be said to have exercised its discretion judicially within the circumstance of this case.

Appellants’ Counsel urged this Court to set aside the award of cost made by the Sharia Court of Appeal, Abuja and resolve this issue in favour of the Appellants.

On issue five, learned Counsel to the Appellants submits for the Appellants that the Sharia Law principle of Al-Izar is a mandatory and distinct practice observed in matters decided strictly under Islamic law before the Court pronounces its judgment. That the importance and procedure of the observance was aptly captured at Pages 31-33 of the book titled Guide to Advocated, an English Language Translation and commentary on Tuhfatul Hukkam, authored by Abbas Abdullahi Michika, Esq., Published in 2020 by Zusalat Company Ltd, wherein the learned author quoted the dictum of his Lordship Honourable Justice S. M. Coomassie, JCA (as he then was) in the case of Hakimi Boyi Umaru Vs. Aisha Bakoshi (Appeal No.: CA/K/83/S/94) on the principle of Al-Izar, thus: –
“… akin to alloquitaas 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 judgments delivered without Izar would be null and void”.

That also, the learned author of Guide of Advocates, An English Language Translation and Commentary on Tuhfatul Hukkam, proceeded at Page 32 to outline the procedure of the observance of Al-Izar thus: –
“AI-Izar is a fundamental requirement of procedure of Islamic Law to be observed in all judicial proceedings. Failure to observe this procedure vitiates the proceedings and whatever judgment arrived at is a nullity. Because of its importance, and in order to ensure strict compliance with it the Sharia stipulates that it be observed by a Judge in the presence of at least two unimpeachable witnesses. That and the responses of the litigants to the questions put to them shall be recorded accordingly”.

Learned Counsel to the Appellants argued that it is deductible from the above excerpt that the validity of the application of the principle of Al-Izar is also contingent upon the presence of two witnesses, so therefore, for the principle of AI-Izar to have been validly applied before the lower Court, it must be done in the presence of two witnesses. He calls in aid the case of Mohammad Magaji Bami Vs. Alhaji Abdullahi Rugga Major (2006) Sarauniya Law Report at Page 123 Paras 109-114; and Kabiru Mohammed Liyafa Vs. Hajiya Kyauta (2018) LPELR-45267 (CA).

Appellants’ Counsel contended that from the entirety of the Record of Appeal there is no place where the principle of Al-Izar was applied before the judgment of the Sharia Court of Appeal, Abuja was delivered or anytime thereafter.

Finally, the Appellants’ Counsel argued that the application of the principle of Al-Izar being a mandatory requirement for a valid judgment under Islamic Law, failure of the lower Court to apply same renders the entire judgment delivered by the lower Court on the 6th of May, 2020, a nullity.

Appellants’ Counsel urged this Court to allow the appeal and set aside the judgment of the Sharia Court of Appeal, Abuja.

In response to the Appellants’ Brief of Argument, the Respondent filed his Brief of Argument dated 8th of September, 2021 but which was deemed on 10th of February, 2022. As settled by its Counsel Mr. Bashir S. Ahmad Esq; the five (5) issues formulated by the Appellants were adopted with modifications, viz: –
1. Whether the learned Kadis of the lower Court were right to have held that Quran 2:180 did not define Tarika (Estate) and that the verse did not also exclude a biological father from inheriting his son’s benefit or right.
2. Whether the learned Kadis of the lower Court did not make any findings on Grounds two and three of the Appellants’ Notice of Appeal of the 20th February, 2020.
3. Whether the definition of immediate family postulated by the lower Court was a ratio decidendi capable of sustaining a valid ground of appeal or it was a mere obiter and thereby incapable of sustaining a valid ground of appeal.
4. Whether the learned Kadis of the lower Court were right to have awarded N300,000.00 (Three Hundred Thousand Naira) only as cost against the 1st Appellant.
5. Whether the learned Kadis of the lower Court did not conduct Al-Izar so as to vitiate their judgment.

On issue one, learned Counsel to the Respondent Mr. B. S. Ahmed, Esq., began his argument by first reproducing the holding of the lower Court, thus: –
“We are unable to see how this verse supports the submission of the Appellants’ Counsel that the learned trial Judge was wrong to have assumed jurisdiction to distribute the said death benefit, contending that same does not form part of the heritable estate of the deceased. The verse is very clear and unambiguous, it talks about bequest to parents and relatives. Nowhere in the verse it is mentioned what constitute TARIKA neither did the verse exclude a father from benefitting from the right and benefit of his son’s work and effort during his lifetime”.

Respondent’s Counsel submits that the above ratio is very correct and in tandem with the meaning of Quran 2:180. That the combined effect of Quran 2:180 and Quran 4:11 is that parents have been separated from relations in terms of inheritance and that parents are entitled to inherit as of right not at the mercy of their children to make Wasiyya in their favour. That the very portion of verse 180 of Quran 2 legalizing Wasiyya or bequest to one’s parents is not more applicable in view of the Provisions of Quran 4:11. He stated that the importance of the above is to show special position occupied by the Respondent in Sharia as a biological father. Reliance was placed on Tafsirul Jalaini by Imam Suyudi on Quran 2:180. That the learned jurist also cited a Hadith of the Prophet (PBUH) equally and categorically abrogating that portion of Quran 2:180 making it lawful to make Wasiyya to one’s parents.

Learned Counsel to the Respondent submits that under Sharia, a biological father has absolute right and control over the wealth of his son if the son is alive. He argued that this is predicated on the Hadith of the Prophet (PBUH) wherein he told a son who complained against his father that both the son and his wealth that he complained of belonged to his father. That this shows the emphasis and special-cum-unique right given to a father by sharia over the wealth of his son even when the son is alive. That by analogy and for the sake of argument, the father will hold more right, power and control over the wealth of his upon the latter’s death since the wealth will not be used by the son anymore but subject to the dictate’s sharia.

It is also the position of the Sharia that after the death of a son, his father is entitled to one-thirds and the entire residue where the son is childless (Quran 4:11). That however, as in the instant case, the Respondent is entitled to one-sixths since the deceased has the 2nd to the 5th Applicants as his children, and therefore right for the lower Court to have held thus: –
“His father, the Respondent is entitled to 1/6 of the said sum in line with Qur’an 4:11 which stated:
“…And for one’s parents to each one them is a sixth of his estate if he left children… “

Learned Counsel to the Respondent submits that as regards to the meaning of estate/tarika, it is the property a deceased left behind either or not is in his possession, that is to say, the Death benefit in question though not in possession of the Deceased at the time of his death, but it is money that was certain and expected by virtue of the employment of the Deceased. That right from the terms of the Deceased’s employment, it was clear to him that if he retires, resigns or dies in service, there is a benefit in his favour in any one of the events. That Death Benefit is not quite the same as gift by sympathizers or well-wishers, as it is the right of the Deceased which if denied can be enforced by a Court of law on behalf of the Deceased and for his heirs.

Respondent Counsel further submits that the majority of the Muslim jurists agreed that a right of a deceased Muslim forms part of the estate of a deceased. He cited Dr. A. Hussaini, who in his Book, “Islamic Law of Succession” states that: –
“According to the Hanafifiqh the concept of property excludes rights such as contracts, these rights lapse with the death of the individual. The other Fiqh are of the opinion that these rights are inheritable”.

Learned Counsel to the Respondent submits for the Respondent that among the latter jurists, the law has been reiterated that whatever comes out of the deceased’s effort or work which he did while he was alive it is part of his estate/ Tarjkah and must be included therein. He calls in aid al- Masoo’ah al-Fihiyyah (Vol. 11/208, Asnaa’al-Mataalib (3/3) and Tuhfat al- Muhtaaj (6/38 ) cited in https://islamqa.info.

Furthermore, Respondent cited the book FiqhlMuyassar, Fi Dau’ilkitabu Wassunnah by Shekh Salihu bin Abdulazeez, who defines estate/Tarikah as: Estate is wealth of the deceased in cash, in kind or in rights.

Respondent Counsel urged the Court to resolve this issue in favour of the Respondent and against the Appellants.

On issue two, learned Counsel to the Respondent submits that the lower Court had dealt extensively with the Appellants’ Grounds 2 and 3 of the Appellants’ Notice of Appeal of the 20th February, 2020. He submits that the lower Court applied a holistic approach to the three (3) issues formulated by the Appellants and determined same as one issue. He argued that the law is settled that an Appellate Court is not bound by the coinage of the issues formulated by parties. That the Court if it deems it proper, can collapse as many issues as possible into one or more issues for ease for determination. He referenced the case of OKAFOR Vs. ABUMOFUANI (2016)12 NWLR (Pt. 1525) 117 SC.

It was stated that the crux of the Appellants’ issues and Grounds 2 and 3 as stated in Page 6 of the Appellants’ Brief of Argument are as follows: –
a. Issue two deals with definition of the concept of Tarika and;
b. Issue three deals with the interpretation and application of Quran 2:180.

Respondent’s Counsel contended that the concept of Tarika was sufficiently addressed by the lower Court at Page 88 and Pages 87-91 of the Record of Appeal, and same Court also addressed the interpretation of Quran 2:180 at Page 90 of the Record of Appeal.

Learned Counsel to the Respondent argued that the authorities cited by the Appellants are not applicable to their case because the authorities deal with making pronouncements on all the issues raised by parties before the Court. He references AYISA Vs. AKANJI (1995)7 NWLR (Pt. 406) 129 at 143-144, PARAS. H-B AND IROLO Vs. UKA (2002)14 NWLR (Pt. 786) 195 At 225, PARAS. D-H. That in the instant appeal, the lower Court had made succinct pronouncement on definition of Tarika and interpretation of Quran 2:180.

Respondent Counsel submits that the combined effect of Quran 2:180 and Quran 4:11 is that parents have been separated from relations in terms of inheritance and that parents are entitled to inherit as of right not at the mercy of their children to make Wasiyya in their favour. That the very portion of verse 180 of Quran 2 legalizing Wasiyya or bequest to one’s parents is no more applicable in view of the Provisions of Quran 4:11.

On issue three, learned Counsel to the Respondent argued that Ground three of the Appellant’s Amended Notice of Appeal is anchored on an obiter and it is liable to be struck out.

It was submitted for the Appellants that there was no issue or ground of appeal before the lower Court that had to do with the definition of immediate family. That the lower Court only went extra mile to reiterate the position of the Respondent to be part of the Deceased’s immediate family member in view of his status as a biological father. That the definition of immediate family given by the lower Court was not the basis of the lower Court’s reasoning and it cannot sustain a ground of appeal. Reliance was placed on UDOM Vs. UMANA (NO. 1) (2016)12 NWLR (1526) 299 At 244-225, PARAS. A-B.

Learned Counsel to the Respondent argued that the lower Court was only responding to the Appellants’ Counsel’s argument that the Deceased’s death benefits were the sole right of the Appellants as members of the Deceased’s immediate family but excluding the Respondent being a biological father. That the lower Court held:
“In an online book, “Immediate family law and legal definition” it defined immediate family as “someone’s spouse, parents and grandparents, children and grandchildren, brothers and sisters, mother-in-law and father-in-law, brothers-in-law and sister-in-law, daughters-in-law and sons-in-law.”.

Respondent’s Counsel argued that the quotation above shows that the lower Court was just trying to go extra mile by conducting its personal research on the position of a father (the Respondent) to his son. That the ratio decidendi was what the lower Court rightly held that the Respondent was entitled to share in the death benefit of his son. Learned Counsel to the Respondent contended that even if the lower Court relied heavily on the Book “Immediate Family Law and Legal Definition” in arriving at the ratio decidendi, the lower Court has been absolutely right because it was done in quest to arrive at an informed decision and the Appellants have not suffered any form of miscarriage of justice therefrom. He urged the Court to so hold.

On issue four, Respondent Counsel submits that the Appellants did not seek for leave of either the lower Court or this Honourable Court to appeal against the award of cost of N300,000.00 by the lower Court. He stated that the law is trite that a ground of appeal challenging award of cost and on which no leave was sought and obtained before filing same, it shall be a nullity and the Court has no jurisdiction to consider the said ground. He referenced UKIRI Vs. UBA PLC (2016)3 NWLR (Pt. 1500) 440 at 457, PARAS. F-H AND ENL CONSORTIUM LTD Vs. D.B.N. LTD (2020) 8 NWLR (Pt. 1725) 179 At 200 PARAS. B-C.

On issue five, learned Counsel to the Respondent contended that the lower Court did conduct the Al-Izar contrary to the Appellants’ Counsel has misconceived the concept or principle of Izar in Sharia Courts proceedings in that the import and purport of Izar is to ensure that all parties are fully heard and no party complains of denial of fair hearing. He cited the case of MUHAMMADU Vs. SECRETARY & ANOR (2013) 1 SQLR (Pt. 111) 44 At PARAS. B-D, where it was held thus: –
“On the issue of Al-Izar which appears prominently in the decision of the two Courts, it is clear that the main purpose of such exercise is to make sure that none of the parties is adjudged unheard”.

Respondent’s Counsel contended that all the parties were heard and especially the Appellants who filed two briefs and adopted same before the lower Court, made their oral submission to a conclusion. That it is not shown anywhere in the Records that the Appellants were not allowed to present their case before the lower Court.

It was stated that the traditional way of doing Al-Izar, that is, by asking the parties specifically if they have anything to say applies in proceedings conducted orally. That in this instant, however, parties were represented by Counsel and all the Counsel made respective submissions and evidence were filed by Counsel. That Counsel got the ample opportunity to put all their submissions in writing and Counsels were further given opportunity to adumbrate orally at the hearing of the appeal before the lower Court. He contended that this is enough to constitute a valid Al-Izar in the eyes of sharia.

Respondent Counsel argued that all the proceedings of the lower Court were conducted in open Court and in the presence of the public. That the Appellants are not complaining of a miscarriage of justice against them but their complaint is that there was no Izar conducted, forgetting that the lower Court is an Appellate Court of which observing Izar before the lower Court differs from Izar before the trial Court. Respondent Counsel argued that lower Court does not take evidence, except in exceptional circumstances which is not applicable in this case. That all the authorities cited by the Appellants support the argument that Izar is fully observed before trial Courts than appellate Courts.

Respondent’s Counsel urged this Court to dismiss the appeal for lacking in merit with a cost of N1,000,000.00.

In response to Respondent’s Brief of Argument, the Appellants’ Counsel filed Reply Brief on 29th April, 2022 which was deemed properly filed on 16th May, 2022.

On the Respondent’s submission that the provisions of Quran 2 Verse 180 had been abrogated by the latter provision of Quran 4 Verse 11 and thereby not applicable to determining the distributable estate of a deceased Muslim, learned Counsel to the Appellants argued that the Respondent’s submission is not a true representation of the Sharia Law. He stated that ‘Abrogation’ in relation to the Quran, refers to the situation where the revelation of later verses of the Quran complements, changes or alters the ruling established by an earlier verse(s). That the abrogated verse does not lose its efficacy or become comatose, rather it still remains in force and is not completely forgotten. That in the instant appeal, while the provisions of Quran 2 Verse 180 places a general duty upon a righteous person who leaves wealth to make provisions for its fair and equitable distribution, Quran 4 Verse 11 goes further to provide with certainty, the quantum of such wealth left behind accruable to the various categories of inheritors stated in the Quran depending on the prevailing circumstance.

In response to Paragraphs 3.1-3.3 of the Respondent’s Brief, Appellants argue that the definition of immediate family cannot amount to an obiter as contended by the Respondent as the said definition forms the fulcrum around which the lower Court ultimately based its decision and thus amounts to a ratio decidendi capable of being appealed. That the Appellants had submitted before the lower Court that the death benefits of the deceased did not form part of his distributable estate having not being mentioned either in Quran or Hadith and was thus to the exclusive benefit of the immediate family, which includes the Appellants only. That the lower Court while considering this submission anchored its reasoning on an unknown and authorless online book “immediate family law and legal definition” while holding that the scope of what constitutes immediate family had been widened to include different categories of people including the Respondent for the purpose of making the death benefit part of the inheritable estate of the deceased. He argued that the book the lower Court relied on in arriving at its judgment is neither a book predicated on the Primary or Secondary Sources of Sharia law nor was same authored on the Principles of Sharia Law nor was same authored on the Principles of Sharia Law as it guides.

In response to Paragraphs 4.1 and 4.2 of the Respondent’s Brief of Argument, the Appellants argued that the judgment of the lower Court being a final one, appeal lies as of right without the requirement of leave, especially as the appeal is not predicated solely on the issue of cost. Reliance was placed on the case of Tumo Vs. Murana (2000)12 NWLR (Pt. 681) 370 at 384 Paras. A-B.

In response to Paragraphs 5.1-5.3 of Respondent’s Brief, the Appellants argued that observance of Al-Izar in the prescribed manner in the presence of two witnesses is mandatory condition precedent to the validity of any judgment delivered under Sharia Law, and failure of which renders the entire decision or judgment a nullity and it is immaterial if parties are represented by Counsel or not as its observance is an inalienable right of the parties.

RESOLUTION OF ISSUES
I have made a careful perusal of the Record of Appeal and the submissions of the Learned Counsel to the parties as regards the subject matter of the appeal. Having well digested the said Record and submissions of Counsel, I will now proceed to determine this appeal by adopting the issues formulated by the Appellants. They are once again reproduced below:
1. Whether the learned Khadis of the Sharia Court of Appeal, Abuja, were not wrong when they held that Quran 2 Verse 180 did not state what constitute Tarika and that death benefit, forms part of the distributable estate of deceased person.
2. Whether the learned Khadis of the lower Court were not wrong when they failed and refused to make any finding on Grounds two and three of the Notice of Appeal and argued as issues two and three in the Appellants’ Brief of Argument dated the 20th day of February, 2020 respectively.
3. Whether the learned Khadis of the Sharia Court of Appeal, Abuja division were not wrong to have relied and acted upon an unidentified authority outside the primary, secondary sources of Islamic Personal Law and Maliki School of thought.
4. Whether the learned Khadis of the Sharia Court of Appeal, Abuja’s award of the sum of N300,000.00 as cost against the 1st Appellant is not excessive and consequently unwarranted in the circumstance of the case.
5. Whether the judgment of the Sharia Court of Appeal, Abuja is liable to be set aside for failure of the learned Khadis to observe the mandatory practice of Al-Izar before pronouncing the Court’s judgment.

ISSUE ONE:
Whether the learned Khadis of the Sharia Court of Appeal, Abuja, were not wrong when the held that Quran 2 Verse 180 did not state what constitute Tarika and that death benefit, forms part of the distributable estate of a deceased person. Tarika, in the sense of Sharia Law, is the property that a dead Muslim left behind either or not it is in his possession. Consequently, the death benefit may not be in possession of the Deceased at the time of his death, but it constitutes something that is certain (that is, it would happen in future time) by virtue of the acts of today by the person concerned.
Above is my opinion of the majority of the Muslim jurists. That a right of a deceased person forms part of the estate of a deceased is well stated by Abdul Rahman Doi, in his Book “Sharia: The Islamic Law”, Page 273, thus: –
“But the jurists differ in what amounts to property. The Hanafi School says that property excludes rights and that the right is not inheritable, for example, if somebody enters into a contract of hire, his heirs after his death inherit the contract also? According to the Hanafi School, the Contract lapses with the death of their father. But the rest of the schools are of the opinion that rights are inheritable”.
Before I go any further, it is helpful to reproduce the holding of the lower Court as regards Quran 2:180: –
“We are unable to see how this verse supports the submission of the Appellant’s Counsel that the learned trial Judge was wrong to have assumed jurisdiction to distribute the said death benefit, contending that same does not form part of the heritable estate of the deceased. The verse is very clear and unambiguous, it talks about bequest to parents and relatives. Nowhere in the verse, it is mentioned what constitutes TARIKA neither did the verse exclude a father from benefitting from the right and benefit of his son’s work and effort during his lifetime”.
(See Page 90 of the Record of Appeal).
The above is a reasonable ratio and it is in tandem with the actual meaning of Quran 2:180. Learned Counsel to the Respondent’s submission that the combined effect of Quran 2:180 and Quran 4:11 is that parents have been separated from relations in terms of inheritance and that parents are entitled to inherit as of right not at the mercy of their children to make Wasiyya in their favour, is stainless.
It is the position of Islamic Law that a biological father has right over the wealth of his son- whether the son is alive or dead. The estate in dispute, the Death benefit of the Deceased is a product of the deceased employment, that is to say, the consequence of the deceased contract with the Federal Judiciary. It follows naturally that the Death Benefit is the Deceased’s right. This right is inheritable by the Deceased’s heirs and the heirs includes the Respondent. (i.e. the deceased’s father).
The law has been reiterated that whatever comes out of the deceased’s effort or work which he did while he was alive forms part of his estate and must be included in his estate. See al-Masoo’ah al-Fihiyyah (Vol.11/208, Asnaa’al-Mataalib (3/3) and Tuhfat al-Muhtaaj (6/382) cited in https: islamqa.info.
Furthermore, he cited the book FiqhlMuyassar, Fi Dau’ilkitabu Wassunnah by Shekh Salihu bin Abdulazeez, who defines Estate as: –
“Estate is wealth of the deceased in cash, in kind or in rights”.
Here we are dealing with the right of the deceased in form of his right to Death Benefit and as the lower Court rightly held at Page 88 of the Record: –
“Majority of Islamic jurist are of the view that rights and benefits are inheritable. The Islamic jurist relied on the Hadith of the Holy Prophet Muhammad (PBUH) where he said:
“He who leaves property or rights they belong to his heir”.

ISSUE TWO:
Whether the learned Khadis of the lower Court were not wrong when they failed and refused to make any finding on Grounds two and three of the Notice of Appeal and argued as issues two and three in the Appellants’ Brief of Argument dated the 20th day of February, 2020 respectively.

In Ayisa Vs. Akanji (1995)7 NWLR (Pt. 406) 129 at 143-144 Para. H-B, it was held: –
“It is the duty of all Courts below the Supreme Court to pronounce on all issues raised or brought to their notice by the parties, and not to restrict themselves to one or more of the issues which in their opinion disposes of the case. This is necessary because of the danger of a higher Court disagreeing on appeal with the view held on that point or issue… “

The fact however is that the lower Court did make findings on the said grounds and issues. The tactic the lower Court adopted, to my understanding, is that the lower Court joined the two issues together and resolved them as one. This is valid and acceptable way to resolve or determine issues. As held in OKAFOR Vs. ABUMOFUANI (2016)12 NWLR (Pt. 1525) 117 SC, a Court can collapse as many issues for ease of determination. In the Appellants’ Brief, specifically Page 6: –
a. Issue two deals with definition of the concept of Tarika and;
b. Issue three deals with the interpretation and application of Quran 2:180.

On the concept of Tarika, the lower Court at Page 88 of the Record held that: –
“Majority of Islamic jurist are of the view that rights and benefits are inheritable. The Islamic jurist relied on the Hadith of the Holy Prophet Muhammad (PBUH) where he said:
He who leaves property or rights they belong to his heir”.

Also, on issue/ground three which deals with the interpretation and application of Quran 2:180, the lower Court made the following finding:
“We are unable to see how this verse supports the submission of the Appellant’s Counsel that the learned trial Judge was wrong to have assumed jurisdiction to distribute the said death benefit, contending that same does not form part of the heritable estate of the deceased. The verse is very clear and unambiguous, it talks about bequest to parents and relatives. Nowhere in the verse it is mentioned what constitute TARIKA neither did the verse exclude a father from benefitting from the right and benefit of his son’s work and effort during his life time”.
(See Page 90 of the Record of Appeal).

It follows from the above that the lower Court made sufficient pronouncements on definition of Tarika and interpretation of Quran 2:180- The subject matters of grounds/issues two and three of the Appellants’ Notice of Appeal and Brief of Argument.

This issue is resolved in favour of Respondent and against the Appellants.

ISSUE THREE:
Whether the learned Khadis of the Sharia Court of Appeal, Abuja division were not wrong to have relied and acted upon an unidentified authority outside the Primary, Secondary Sources of Islamic Personal Law and Maliki School of thought.

On this issue, the Respondent’s Counsel got it right when he argued at Paragraph 3.3, Page 12 of their Brief of Argument that the lower Court was merely responding here to the Appellants’ Counsel’s argument that the Deceased’s death benefit is the sole right of the Appellants as members of the Deceased’s immediate family but excluding the Respondent being a biological father. The trial Judge in his own words: –
“In an online book, “Immediate family law and legal definition” it defined immediate family as “someone’s spouse, parents and grandparents, children and grandchildren, brothers and sisters, mother-in-law and father-in-law, brothers-in-law and sister-in-law, daughters-in-law and sons-in-law.”.
(See Page 91 of the Record of Appeal)
There is nothing wrong with this. I mean there is nothing wrong for a Judge to rely on other sources of legal material so long as that effort would throw more light on the issue before the Court. In ACCESS BANK Vs. AGEGE LG & ANOR (2016) LPELR-40491, it was held that: –
“A Court is not limited to the case cited by Counsel in determining matters before the Court. The Court can rely on other sources of legal materials such as those derived from personal research and publications to support the Court in determining issues. There is no restriction on Court to limit itself to only cases cited by parties”.
I hold that the lower Court did well by going extra mile to conduct research and consult more authorities to enable it arrive at a just decision. No contradiction arose from the alleged authorless publication and other authorities cited and relied upon by the lower Court. It does not in any form go against the finding of the lower Court as stated at Page 91 of the Record of Appeal, thus:-
“No law, no culture or tradition will exclude a father from being a member of an immediate family of a person”.

This issue is resolved against the Appellants in favour of the Respondent.

ISSUE FOUR:
Whether the learned Khadis of the Sharia Court of Appeal, Abuja’s award of the sum of N300,000.00 as cost against the 1st Appellant is not excessive and consequently unwarranted in the circumstance of the case.

On this issue, let me first state that the determination of the cost is at the discretion of the Court who must use it judicially and judiciously. Did the trial Judge fail to do so? The Learned Counsel to the Appellants does not think so. But he did not offer satisfactory reason(s) in support of his opposition. He had argued that the Respondent is not entitled to such sums of money as cost because to him, it is too huge. But when you take into consideration the trauma, the time and other resources expended by the Respondent in his search for justice, N300,000.00k is a fair amount. The Respondent is needlessly dragged into family dispute and treated unfairly.

The learned Khadis of the lower Court were right in awarding N300,000.00 as cost against the Appellants and I do not see the need to interfere with the decision of the lower Court.

This issue is resolved against the Appellants and in favour of the Respondent.

ISSUE FIVE:
Whether the judgment of the Sharia Court of Appeal, Abuja is liable to be set aside for failure of the learned Khadis to observe the mandatory practice of Al-Izar before pronouncing the Court’s judgment.

On this issue, the Appellants are not complaining of a miscarriage of justice against them but their complaint is that there was no Izarat at the end of proceedings at the lower Court before the Court made its pronouncement.
The point however is that the lower Court is not the trial Court but an Appellate Court and as such its observance of Al-Izar is quite different. Except in exceptional circumstances, it does not take evidence. The traditional way of conducting Al-Izar, that is to say, by specifically asking the parties if they have anything to say applies in proceedings conducted orally. In the instant case however, parties are represented by Counsel and all the Counsel made respective submissions and evidence were filed by Counsel. Consequently, Counsel got the ample opportunity to put all their submissions in writing and were further given opportunity to adumbrate orally at the hearing of the appeal before the lower Court. And considering the fact that the proceedings are conducted in the open Court before witnesses, enough was done to satisfy the conditions for a valid Izar in the eyes of Islamic Law.
Izar is indeed mandatory but the traditional way of conducting same by asking parties whether there is anything more to say belongs to the realm of trial Court. And the trial Court did conduct Al-Izar in the instant case. The Appellate Court’s mode of Izar may not necessarily follow that of trial Court.

All the issues formulated for determination of this appeal by the Appellants are resolved in favour of the Respondent and against the Appellants. This appeal is dismissed for being unmeritorious.

The judgment of Sharia Court of Appeal, FCT, Abuja delivered on 6th May, 2020 by Honourable Learned Khadis Ibrahim Rufa’i Imam, Ibrahim Baba Gwaram and Aminu Aliyu Sa’ad in Appeal No.: SCA/FCT/CV/07/2020, is hereby affirmed. I make no further order(s).

SAIDU TANKO HUSSAINI, J.C.A.: I have read the leading judgment delivered by my brother, Mohammed Danjuma, JCA. I agree with him on the reasoning and conclusion. This appeal is dismissed for being unmeritorious.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother M. DANJUMA, JCA obliged me the draft of the leading judgment delivered by him just now. For the reasons ably considered in the judgment that tallied with mine, I too found the appeal unmeritorious. The appeal is dismissed by me too.

I abide by the consequential orders in the leading judgment.