CORAM

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HON. JUSTICE A. M. TALBA JCA

HON. JUSTICE A. M. LAMIDO JCA

HON. JUSTICE M. DANJUMA JCA

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PARTIES

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ADAMU MAI KIFI

APPELLANTS 

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MAIMUNA NUHU LAMINU

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, ISLAMIC PERSONAL LAW, LAND, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant instituted the suit before the trial court seeking the distribution of the estate left behind by his grandfather one Abdu da Kwari who died about eighty years ago. The said Abdu da Kwari was the father to one Abdu Dan Tanti the father of the Appellant and the said Abdu da Kwari also gave birth to Abdu Barde, the father of Nuhu Laminu (the initial Respondent who died). Nuhu Laminu was thus substituted by the Respondent, on the 3rd day of June, 2014, via a Motion on Notice dated the 2nd day of June, 2014. On the 24th day of April, 2008, the trial court decided to leave the estates of the inheritance to the Respondent as they were before the trial. The Appellant having failed to establish his link/relationship with the said Abdu dan Kwari.

Dissatisfied with the decision, the Appellant appealed before the Upper Sharia Court, Dutse, who in its judgment also affirmed the decision of the trial court.

Dissatisfied with this, the Appellant appealed to the lower court. The said lower court in its judgment affirmed the decision of both the trial court and the Upper Sharia Court, Dutse, on the 18th day of May, 2010. However, in the said judgment, it ordered that if the Appellant finds witnesses to confirm his relationship with his grandfather he can institute a fresh action before any court.

Dissatisfied with the decision, the Appellant filed the instant appeal.

 

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether under Islamic Law of inheritance and procedure the issues of proving death, ownership of the estate left behind by the deceased person and his relationships with heirs, can be established by hearsay evidence?

2. Whether the trial court has properly evaluated the oral evidence adduced by the Appellant?

 

 

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RATIONES DECIDENDI

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INHERITANCE – CONDITIONS THAT MUST BE FULFILLED FOR THE DOOR OF INHERITANCE TO OPEN UNDER ISLAMIC LAW

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Conditions that must be fulfilled for the door of inheritance to open under Islamic Law was well enunciated in the case of JATAU V. MAILAFIA (1998) LPELR-1598 (SC), where it was stated thus:

“… it is trite that under the sharia, the door of inheritance only opens on the fulfillment of two fundamental conditions, namely, proof of death of praepositus and the survival of an heir. Other authorities is Islamic Law, however, include a third condition to the effect that there must be an inheritable estate left behind by the praepositus”. Per ONU, JSC (P. 17, Paras. A-C).

Also, in FATHUL ALIYIL MALIK VOL. 2 at Page 190, the learned author said as follows:

“Whosoever claims ownership in fee simple of a property in the possession of another and alleged that it is part of the estate he has 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 the 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 Mohammed Danjuma, JCA

 

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INHERITANCE – PRE-DISTRIBUTION CONDITIONS TO BE SATISFIED BY A CLAIMANT OF INHERITANCE

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Now, let me explain clearly that Islamic Law of inheritance has made some pre-distribution conditions to be satisfied by a claimant of inheritance before an estate can be distributed. These are:

1. That the death of the praepositus has occurred de facto or de jure;

2. That the claimant is a bonafide legal heir to the praepositus i.e. through establishment of affinity of each legal heir to the praepositus;

3. That the praepositus has left behind existing estate over which he has exclusive ownership, free of any encumbrance;

4. Whether the praepositus owed any debt; and

5. Whether praeopositus made a will.

See Qu’ran Chapter 4 Verse 11; Mawahibul Khallaq Vol. 2 Page 13; Ihkamul Ahkami Page 331; Jawahirul Iklil Vol. 2 Page 327.

The second step is the burden upon the clamant to establish his legal relationship with the deceased through any of the known grounds of inheritance:

a. Blood (Nasab/Qarabah)

b. Marriage (Nikah/Zawai)

c. Emancipation (Itaq/Walaa)

If a person is making a claim for inheritance against a deceased through any other ground than the above, he can hardly succeed. – Per Mohammed Danjuma, JCA

 

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CLAIMANT – WHEN A CLAIMANT FAILS TO PRODUCE CREDIBLE WITNESSES IN SHARIA LAW

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It is the principle of Islamic law that once a claimant failed to produce credible witnesses to substantiate his claim, the judge should dismiss the case. – Per Mohammed Danjuma, JCA

 

 

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CLAIMANT – BURDEN AND STANDARD OF PROOF ON THE CLAIMANT UNDER SHARIA LAW

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Indeed, as aptly postulated by the lower court, it is a trite fundamental doctrine, that a complainant has the burden to ascertain with specification and exactitude the subject matter of his claim. It behooves the complainant under Islamic Law, to give a full description of the subject matter of his claim in such a way that the respective parties and the court would have a clear picture and comprehension thereof. This requirement of the law is a condition precedent, the absence of which renders the action incompetent and liable to be struck out. As aptly postulated in BAHJA, a well-known commentary on TUHFATUL AL-HUKKAM Volume 1 at 29:

“The description (of the subject matter) may either be in its nature, quality or type, like a piece of land which its boundary is not known or a piece of cloth which type is not known or Dirham which quantity is not known etc., such a claim will not be entertained”. – Per Mohammed Danjuma, JCA

 

 

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ISLAMIC LAW – WHEN A LITIGANT VOLUNTARILY SUBMITS HIMSELF FOR ADJUDICATION UNDER SHARIA LAW

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The litigant who voluntarily submits himself for adjudication under Islamic Law is bound by its provision – Per Mohammed Danjuma, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules

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