CORAM

---

HON. JUSTICE A. M. TALBA JCA

HON. JUSTICE A. M. LAMIDO JCA

HON. JUSTICE M. DANJUMA JCA

---

PARTIES

---

1. LAYLA ABBAS YUSUF HAJAIG

2. SALMA GHASSANI YUSUF HAJAIG

3. IHAB YUSUF HAJAIG

4. ROLA HAJAIG YUSUF HAJAIG

5. RABEA HAJAIG YUSUF HAJAIG

6. MUNAH HAJAIG YUSUF HAJAIG

7. MAYA YUSUF HAJAIG

APPELLANTS 

---

DELE YUSUF HAJAIG

RESPONDENTS 

---

AREA(S) OF LAW

---

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, ISLAMIC LAW OF SUCCESSION, PRACTICE AND PROCEDURE

 

---

SUMMARY OF FACTS

Upon the demise of Yusuf Hajaig, a naturalized Nigerian of Lebanese origin, who died in 1996, the Plaintiff (now Respondent), filed Suit No: 453/13 against Hussam Hajaig as Defendant, seeking the trial court’s assistance to conduct the exercise of distribution of the inheritable estate of the deceased.

In his statement of claim, the Respondent stated that the deceased left behind one wife, Sallam Hussam, four (4) male children (Dele, Hussam, Ihab and Bakiya) and three (3) female children (Roller, Muna and Maya). The Respondent stated further that the deceased left behind as inheritable estate: Three number of 3 bedroom apartments, two numbers of uncompleted 4 bedroom apartment at Queen Elizabeth, G.R.A, Zaria popularly known as Al-Madina Pharmacy and a big plot of land at Chikaji popularly known as United Oil Mill within which there is a flour mill, a block industry and a store house. In a judgment, the trial court shared the said properties amongst the Respondent, the Defendant Hussam Yusuf Hajaig, 2nd -7th Appellants, excluding the 1st Appellant.

Dissatisfied with the decision of the trial court, the Defendant lodged an appeal against same in a Notice of Appeal. The court below dismissed the appeal and affirmed the trial court judgment.

However, the Appellants claimed they were not parties to the suit from its inception from the trial court up to the court below and sought the leave of the court below to appeal against its judgment as interested parties. The court below exercised its discretion in favour of the Appellants by granting them leave to appeal as interested parties against her judgment. The Appellants proceeded to file the instant appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Whether the court below was right when it affirmed the decision of the trial court despite the failure of the trial judge to ascertain the actual inheritable estate of the deceased, and his heirs before distributing same?

Whether the court below was right when it affirmed the decision of the trial court when it was clear that the Appellants were neither joined as parties to the proceedings nor served with the originating processes as hearing notices thereby compromising and or whittling down the Appellants’ constitutional fundamental right to fair hearing?

Whether the court below was right when it affirmed the decision of the trial court distributing the properties which were not proved to belong to the deceased but owned by a Limited Liability Company?

 

---

RATIONES DECIDENDI

---

BURDEN OF PROOF – BURDEN OF PROOF IN ISLAMIC LAW

---

In the case of AMADU V. YANTUMAKI (2011) 9 NWLR Part 1251 Page 161, it was held at P. 196, Paras. F-G, that:

“It is known principle of Islamic Law that he who asserts must prove. Under the Islamic Law, the statement of the Plaintiff without evidence to support it is nothing, and it cannot be relied upon by the court to enter judgment one way or the other”. Similarly, the Holy Prophet Muhammad (PBUH) was reported in Hadith as saying…

“He who asserts must prove and oath lies on him who denies” See: AL-BAIHAQI, A.H. (1973) SUNAN-AL-KUBRA. DAR AL-FIKR, (BEIRUT) Vol. Viii P. 177. – Per Mohammed Danjuma, JCA

 

---

COURTS – CONDUCT OF COURTS IN DISTRIBUTING A DECEASED’S ESTATE

---

Having ascertained the actual heirs and the inheritable properties of the late Yusuf Hajaig, the learned trial judge then proceeded to distribute the estate accordingly, this accords with Surah An-Nisa Aayah 7 (Chapter 4 Verse 7)…

“From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large, – a determinate share”. – Per Mohammed Danjuma, JCA

 

---

ESTATE – RIGHTS OF ALL SONS OF A DECEASED PERSON TO INHERIT THEIR LATE FATHER UNDER ISLAMIC LAW

---

All sons of a deceased person have equal right to their late father’s estate. Unjustly devouring an inheritable estate is condemned in Qur’an Chapter 4, Verses 13 and 14, thus: Verse 13:…

“These are the limits (set by) Allah (as regards the laws of inheritance), and whosoever obeys Allah and his Messenger (PBUH) will be admitted to gardens under which rivers flow (i.e. paradise), to abide therein, and that will be the great success”.

As for devourers of inheritable estate unlawfully; Verse 14:…

“And whosoever disobeys Allah and his Messenger (PBUH), and transgresses his limits, he will cast him into the fire, to abide therein, and he shall have a disgraceful torment”. – Per Mohammed Danjuma, JCA

 

---

FAIR HEARING – WHERE THE PRINCIPLE OF FAIR HEARING IS NOT UPHELD

---

In the case of FBN PLC VS. T.S.A INDUSTRIES LIMITED 15 NWLR (Pt. 1216) 247 AT 303 Paragraphs A-H, it was held:

“A hearing cannot be said to be fair if any of the parties is refused hearing or denied the opportunity to be heard or to present his case… Any judgment or ruling based on a breach of the constitution will not be allowed to stand on appeal”.

Similarly, in the case of SULEIMAN V. ESYDAU & 6 Ors (1961-1969) SHARIA LAW REPORTS OF NIGERIA P. 150 AT 154, it was held thus:

“…. It is a mandatory principle of Islamic Law that no one should be condemned without being afforded the opportunity of being heard….” Therefore, both under the constitution and Islamic Law it is wrong for any court to condemn any party unheard. Thus, the principles of hearing the parties must be respected and upheld”. – Per Mohammed Danjuma, JCA

 

---

TECHNICALITIES – TECHNICALITIES UNDER ISLAMIC LAW

---

Under Islamic Law, technicalities have no place. Once the beneficiaries and the estate are properly identified, the distribution can go ahead. Nothing stops the other heirs from collecting their share whenever they deem fit. You cannot deny a man the right to inherit his father on the basis that he lumps the co-heirs instead of listing them once after the other. – Per Mohammed Danjuma, JCA

 

---

PARTIES – THE EFFECT OF PARTIES SUBJECTING THEMSELVES TO SHARIA LAW OR COMMON LAW

---

One cannot seek equity through a mixture of Sharia and Common law. Once a litigant subject himself/herself to Sharia adjudication, he/she is bound by its provisions. – Per Mohammed Danjuma, JCA

 

---

COMPANY – WHETHER THE SHARIA COURT HAS JURISDICTION

---

Let me re-emphasis that a limited liability company is a separate and distinct legal entity. Its properties is therefore subject to inheritance under Islamic law of succession. Consequently, the sharia Court of Appeal has jurisdiction to distribute the properties of a limited liability company. – Per A. M. Talba, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Sharia Court Law of Kaduna State 2001

3. Court of Appeal Rules

4. Kaduna State Law No. 11, 2001

CLICK HERE TO READ FULL JUDGEMENT