MALAM MUSA v. MALAMA MANGA & ANOR
(2018)LCN/11909(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/16S/2016
RATIO
LAND LAW: CLAIM OF OWNERSHIP OF LAND
“I have reproduced in verbatim the claim of the respondents before the trial sharia Court II, Jega and same relates to inheritance from the estate left behind by their deceased father and which remained in possession on the appellant who is also an heir. In FATHUL ALIYIL MALIK VOL. 2. at page 190 the learned author said as follows: –
‘whoever claims ownership in fee simple of a property in the possession of another and alleged that it is part of the estate he inherited, the person in possession of the estate shall not be asked to explain how he came about it until the claimant has established the death of his deceased predecessor from whom he claims to have inherited the estate and proves also how he becomes an heir of the said deceased predecessor in respect of the said estate.'” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
MALAM MUSA Appellant(s)
AND
1. MALAMA MANGA
2. MALAMA MA’INNA Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Sharia Court of Appeal, sitting at Birnin Kebbi, Kebbi State delivered on 29/09/2015 which affirmed the decision of the Upper Sharia Court, Jega in suit No. USC/JG/CVA/4/2014.
The suit giving rise to this appeal was instituted by the respondents before the Sharia Court II, Jega against the appellant claiming their Shares of inheritance at page 1 of the record of appeal as follows:
”We Manga and Ma’inna hereby sue Musa Haruna Kimba in respect of our father estate (Malam Uba) who died and left behind a single house at kimba and five (5) farms and all of which are in the hands of Musa, for this we sue him before this Honourable Court so that the Court should divide them and give us our own shares and give to him the share of his father.”
The farms are: –
1. Makarantar Boko farm
2. Hanyar Illela farm
3. Mai agumi farm
4. Gamgammi farm
5. River bank farm.
The defendant denied the claim through his counsel and asserted that they have no connection whatsoever with the estate in question. At the hearing, the plaintiffs called three witnesses while the defendant called none. At the end, the trial Court distributed the said estate between the heirs of Malam Uba.
Dissatisfied, appellant appealed to Upper Sharia Court, Jega which affirmed the judgment of the trial Court. The appellant’s further appeal to the Sharia Court of Appeal was also dismissed. And still not satisfied, appellant approached this Court via a notice of appeal filed on 22/12/2015 containing four grounds of appeal. By leave of this Court granted on 16/10/2017, appellant amended his notice of appeal. The amended notice of appeal contain one ground of appeal.
Distilled from the said amended ground of appeal, learned appellant’s counsel Sani Abubakar, Esq., formulated lone issue for the determination of the appeal as follows: –
Whether the Court below rightly affirmed the concurrent decisions of the lower and Upper Sharia Courts Jega, in which the estate of a deceased Muslim was distributed without the evidence of mujibat witnesses as prescribed under Islamic Law.
Learned counsel for the respondents, Ahmadu Zumaru, Esq. also formulated a lone issue thus:-
Whether there was no sufficient evidence upon which the lower Court would have reached its decision and affirmed the judgment of the trial Court.
The two issues are seemingly the same even though couched differently. They both questions the evaluation of the evidence adduced at the trial Court which was subsequently affirmed by the lower Courts. That being the position, the issue to be determined in my respectful view is-
Whether the Sharia Court of Appeal was right in its conclusion that there was sufficient evidence upon which the lower Courts reached a decision that the respondents are the daughters of Malam Uba and entitled to inherit his estate.
Proffering argument on the lone issue, learned counsel for the appellant submitted that it is a fundamental requirement under Islamic law that for an estate of a deceased Muslim to be validly distributed by Court, mujbat witnesses must be called to confirm the death of the person whose estate is sought to be distributed, the extent of the said estate as well as the identity of the surviving heirs of the deceased. That once any of these requirements is not satisfied, the evidence will not be admissible. He referred to Ikhamul Ahkam page 180 and Bahja vol. 2 page 134.
Still in argument, learned counsel submitted that all three witnesses called by the respondents only proved that the house and farmlands in contention belonged to the deceased, late Malam Uba. Consequently, the lower Court was in error in affirming the decisions of the lower Courts. He urged this Court to resolve the lone issue in favour of the appellant and allow the appeal.
Relying on Fathul Aliyil Maliki vol. 2 page 190, learned counsel for the respondents contended that all what the respondents need to prove in the circumstance is that the house and five houses in possession of the appellant belongs to their deceased father and that they all survived their father. He submitted that the respondents having presented three credible witnesses who testified as to the heir and the estate to be distributed; it is the duty of the appellant to tell the Court that the heirs presented by the respondents are not the only surviving heirs of the deceased. Therefore, his failure amounts to admission of the heirs as presented by the respondents.
He further submitted that it is the duty of the appellant to specifically deny the claim and present witnesses to contradict the evidence of the respondents.
I have reproduced in verbatim the claim of the respondents before the trial sharia Court II, Jega and same relates to inheritance from the estate left behind by their deceased father and which remained in possession on the appellant who is also an heir. In FATHUL ALIYIL MALIK VOL. 2. at page 190 the learned author said as follows: –
‘whoever claims ownership in fee simple of a property in the possession of another and alleged that it is part of the estate he inherited, the person in possession of the estate shall not be asked to explain how he came about it until the claimant has established the death of his deceased predecessor from whom he claims to have inherited the estate and proves also how he becomes an heir of the said deceased predecessor in respect of the said estate.’
From the above, the respondents had two tasks namely, they must prove that they are the daughters of Malam Uba and secondly, they must establish that the said Malam Uba is dead. See JATAU V. MAILAFIYA (2013) 1 SQLR (Prt 1) 123 at 126 – 127.
It is therefore pertinent to analyze the evidence of the three witnesses presented by the respondents in order to ascertain whether they have established the above requirements.
At page 4 of the record of appeal PW1 said:
”By Almighty God, Malam Abdu and Malam Haruna and Ma?inna and Manga are of the same father, they are sons and daughters of Malam Uba, and that all those farms belonged to Malam Uba and that the house is also Malam Uba’s.”
When asked for how long is the death of the father of Manga and Ma?inna (Malam Uba) PW1 answered: –
It is 44 years
At page 5 of the record of appeal, PW2 said-
”I know that Manga and Ma?inna are daughters of Malam Uba and that I know the house at kimba belonged to Malam Uba, the large farm which we curved out our primary school the remainder also belong to Malam Uba, and that the farm bounded by the District Head’s land, and the other farm at a place called Fakon Idi, and the other farm at kimba river bank and the other around Mai ? agumi are the ones I know and all belong to Malam Uba. And that I know when Malam Uba was always going to these places on his horse.”
Finally at pages 6 and 7 of the record of appeal, PW3 said: –
”Between me and God Manga and Ma’inna and Malam Haruna and Malam Abdu are of same father that is Malam Uba, and that the farms and the house are owned by Malam Uba. I know them, at old road, one at the old Fakon Idi one at Mai – Agumi and the other bounded by Gandu, then other one at primary school.”
What is apparent from the testimonies reproduced above, the respondents are daughters of Malam Uba while the appellant and Malam Haruna are the sons of Malam Uba. Also clear from the above testimonies is the fact that the said Malam Uba is dead and was survived by the respondents, appellant and the said Malam Haruna. The extent of the deceased’s estate were clearly stated by all the three witnesses.
I therefore cannot agree more with the submission of the learned appellant’s counsel that the three witnesses called by the respondents did not qualified as mujibat witnesses. It is my respectful and firm view that the three witnesses called by the respondents have confirmed the death of the deceased, the legal heirs and the quantum of the estate left behind by the deceased.
It needs to be stressed here that the general principles of Islamic law relating to claim in civil matters in both movable and immovable property is that proof is completed by evidence of two male unimpeachable witnesses or such one male witness and two or more female unimpeachable witnesses or one male or two female or more witnesses with the claimant?s oath. See IHKAMUL AHKAM short commentary on TUHFATUL HUKKAM, page 34.
In the instant case, all the three witnesses called by the respondents are credible and none was impeached in any way. Therefore, the lower Court was right when it found at pages 36 and 37 of the record of appeal as follows: –
”We have not seen any fault in the decision of the first instance Court, Sharia Court Jega. It has not gone contrary to the principles of Islamic law.”
I therefore agree that the above findings were justified by evidence under Islamic law.
In the final result, this appeal is moribund and is accordingly dismissed.
Parties are to bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the lead judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree for the reasons ably advanced in the lead judgment that the appeal is lacking in merit.
The unmeritorious appeal is dismissed by me. I also subscribe to the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in agreement with his reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto.
Appearances:
Ibrahim HussainiFor Appellant(s)
Ahmad ZumaruFor Respondent(s)
Appearances
Ibrahim HussainiFor Appellant
AND
Ahmad ZumaruFor Respondent
