CORAM

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IBRAHIM MOHAMMED MUSA SAULAWA JSC

TIJJANI ABUBAKAR JSC

JAMILU YAMMAMA TUKUR JSC

ABUBAKAR SADIQ UMAR JSC

MOHAMMED BABA IDRIS JSC

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PARTIES

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MALLAM AMADU GABARI

APPELLANTS 

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BAITA GARBA NA BABANUWA

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, ISLAMIC LAW OF EVIDENCE, INHERITANCE LAW, PROPERTY LAW, HEARSAY EVIDENCE, SHARIA LAW, APPEAL, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This case involves a dispute over the distribution of an estate. The dispute was initially brought before the City No. 1 Area Court, Kano, by Alhaji Garba Na Baban Uwa Gabari against Mallam Amadu Gabari. The complainant claimed a share of the inheritance of the estate of Bako, who was allegedly the father of his mother, Iya. He stated that the property in question originally belonged to Wangara, their mutual ancestor, who had passed away approximately 115-120 years prior. According to the complainant, Amadu’s father (the defendant), Muhammad Dugululu, and Bako had the same father, Wangara.

The complainant called five witnesses in support of his claim. However, the trial Area Court dismissed the testimonies of all five witnesses, finding that none of them established any link between the deceased Bako and Wangara, the alleged common ancestor of both parties. The defendant denied having any blood relationship with the claimant and called three witnesses, whose testimonies were also rejected by the trial Court on the basis that none demonstrated sufficient knowledge of the rightful heirs of Wangara.

On September 30, 1999, the trial Court delivered its judgment, rejecting the testimony of all witnesses from both sides. The Court held that the house should remain in the possession of those who were currently holding it, as both parties failed to present competent witnesses to prove their claims.

Dissatisfied with the judgment, the complainant appealed to the Sharia Court of Appeal, Kano. During the pendency of the appeal, the complainant passed away, and his heirs appointed Zubairu to represent their interests. Similarly, due to the ill health of the defendant, Muhammad Damina and Habibu were appointed to act on his behalf.

The Sharia Court of Appeal reversed the decision of the trial Court, finding that the evidence given by three of the complainant’s witnesses (PW3, PW4, and PW5) successfully established that Wangara was the father of Bako, Bako was the father of Iya, and Iya was the mother of Alhaji Garba. Consequently, the Sharia Court ordered the trial Court to distribute the house among the heirs of Wangara. The defendant then appealed to the Court of Appeal, Kaduna Division, which reaffirmed the decision of the Sharia Court of Appeal. Still dissatisfied, the defendant appealed to the Supreme Court.

 

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HELD

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1. The appeal was allowed.

2. The Supreme Court held that the testimonies of PW IV and PW V did not fulfill the conditions required for the admissibility of hearsay evidence under Islamic Law.

3. The judgment of the Court of Appeal was set aside, and the judgment of the City No.1 Area Court, Kano was restored.

4. The parties were ordered to bear their own costs.

 

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ISSUES

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1. Whether the Evidence of the PW IV and V is admissible in establishing Mulk (Ownership) as one of the mujibat (essentials) for the claimant to partake in the distribution of Estate of the Deceased?

2. Whether the evidence of PW IV and PW V is admissible under Islamic Law of Evidence without Tazkiyyah (ascertaining their credibility)?

3. Whether hearsay evidence is admissible under Islamic law of evidence without the claimant taking an oath of completion?

4. Whether the Court of Appeal was correct in affirming the decision of the Sharia Court of Appeal Kano that set aside the finding of the trial Area Court Kano which dismissed the Respondent’s claim?

 

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RATIONES DECIDENDI

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ADMISSIBILITY OF HEARSAY EVIDENCE UNDER ISLAMIC LAW – INSTANCES WHERE HEARSAY EVIDENCE IS ACCEPTED:

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Hearsay evidence is acceptable in certain instances under Islamic Law. In the book Tuhfatul Hukkam, the author stated:

… (Arabic citation)

Meaning: “And testimony based on hearsay is accepted in cases of pregnancy, marriage, and breastfeeding, as well as in matters of menstruation, inheritance, birth, and the state of Islam or apostasy.”

 

– Per MOHAMMED BABA IDRIS, J.S.C

 

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HEARSAY EVIDENCE IN INHERITANCE CASES – SCOPE OF ADMISSIBILITY:

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“In interpreting the quote above, the book of Al-Bahja (a commentary on Tuhfatul Hukkam) states that hearsay evidence is accepted in various instances, including cases of inheritance.

The author stated on page 214:

… (Arabic citation)

Meaning: “(Regarding inheritance) when witnesses testify based on what they have heard that the deceased has died and that he has no heir except a specific person—either because that person is his freedman or paternal cousin—and they further testify that they have heard he shares lineage with him through a specific grandfather or a common ancestor, as mentioned in Al-Burzuli from Ibn Rushd. This applies in cases where there is no known heir with a clear lineage.”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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HEARSAY TESTIMONY IN LINEAGE MATTERS – TESTIMONY OF RELATIONSHIP:

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“The renowned Maliki jurist, Ibn Abdil Barr, also reiterated that hearsay evidence is acceptable in certain instances. He stated in Vol. 2, page 903:

… (Arabic citation)

Meaning: “Hearsay testimony is permissible according to Malik and his companions in well-known matters regarding lineage (Nasab), emancipation (Wala), endowments (Hubs), and **charitable donations (Sadaqat).”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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CONDITIONS FOR ADMISSIBILITY OF HEARSAY EVIDENCE – REQUIREMENT FOR WIDESPREAD CIRCULATION:

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“One of the cardinal conditions for the admissibility of hearsay testimony under Islamic law is that the witnesses must explicitly state that the information they provide is widely circulated among trustworthy individuals. They must affirm that the information was conveyed to them by a number of reliable sources, as this ensures the credibility and veracity of the testimony.

In the instant case, both PW IV and PW V failed to meet this condition. The witnesses neither specified the source of their information nor stated that they had heard it from a substantial number of people. They merely stated that they were told, which falls short of the standard required for hearsay evidence to be admissible.”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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REQUIREMENT OF TAWATUR IN HEARSAY EVIDENCE – NECESSITY OF UNINTERRUPTED AND NUMEROUS TRANSMISSION:

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“Again, merely hearing from one or two persons does not make hearsay evidence admissible. It requires hearing from a large number of people, reaching the level of Tawatur (uninterrupted and numerous transmission).

PW V stated, ‘I was told,’ but did not specify how he was told or whether the information came from a large number of people or a single source (see page 46 of the Record of Appeal). This makes his testimony invalid.”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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FREEDOM FROM DOUBT IN HEARSAY TESTIMONY – REQUIREMENT OF CERTAINTY AND CREDIBILITY:

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“Another critical condition for the admissibility of hearsay evidence is freedom from doubt regarding the witnesses’ honesty and the accuracy of their testimony. This principle is designed to ensure that the testimony is not tainted by error, dishonesty, or ambiguity.

However, the testimony of PW IV seems doubtful. The learned trial Judge rightly rejected it when he held:

‘PW IV, M. Musa Alaramma Fagge, an 83-year-old, testified that he does not know Wangara, his wife, or his daughters. The witness stated that he knows Bako and that his teacher, M. Mijinyawa, used to take them to pray at Bako’s compound. The witness claimed that he came from Fagge for his studies. However, the Court did not accept this witness’s testimony, as merely coming from Fagge to study and visiting Bako’s compound for prayers does not qualify him to be knowledgeable about the lineage of the Wangara family. This is insufficient, and not knowing the heirs in this case is a significant flaw.’

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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HEARSAY TESTIMONY IN PROPERTY CLAIMS – LIMITATION TO POSSESSORY RIGHTS:

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“A hearsay testimony (Shahadat al-Sama’) is not valid for someone claiming ownership of a property that is in the possession of another who has established possession of it. It is only valid for someone who has the property in his possession.

The trial Court conducted a visit to the property in question and found that all the residents in the said property were descendants of Muhammad Dugulu, the son of Wangara. None of the residents is a descendant of the grandfather of the complainant (see page 48 of the Record of Appeal).”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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REQUIREMENT OF OATH IN HEARSAY TESTIMONY – PROCEDURAL NECESSITY FOR VALIDATING HEARSAY:

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“PW IV and PW V also testified in favor of the claimant. However, it is a trite principle of Islamic law that a judgment cannot be issued in favor of anyone based on hearsay testimony unless they take an oath, due to the possibility that the testimony is based on hearsay from only one witness.

This procedure was not observed at the trial Court, thus making the testimonies simply a voyage into the world of fantasies.”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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WITNESSES IN HEARSAY TESTIMONY – OBLIGATION TO STATE SOURCE OF INFORMATION:

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“In determining whether evidence is hearsay under Islamic law of evidence, the sources of the testimony provided by a witness or witnesses must be considered. It was argued that this ensures that the evidence is classified appropriately as either hearsay or direct.

Reference was made to pages 38 and 39 of the Record of Appeal, which is reproduced hereunder:

Testimony of PW IV:

Court to the witness: Do you know Wangara? (Page 38)

Answer: I don’t know him. He died before I was born, but I used to hear about him and his children.

Testimony of PW V:

Court to the witness: Do you know Wangara? (Page 39)

Answer: I don’t know him physically, but I heard about him. He died long before I was born.“

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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CONDITIONS FOR ADMISSIBILITY OF HEARSAY EVIDENCE – SEVEN CONDITIONS LISTED IN TABSIRATUL HUKKAM:

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“In the book TABSIRATUL HUKKAM at pages 428 – 430, the conditions for the admissibility of hearsay evidence were mentioned. It stated:

… (Arabic citation)

Its conditions are seven:

1. 1. First: It cannot be extracted from the hands of the possessor. Rather, it serves as testimony for the one who currently possesses the item, thereby validating their possession.”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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DEFECTIVE TESTIMONY – CONSEQUENCES OF OMITTING MATERIAL INFORMATION:

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“In the Book of Fathu Aliyul Maliki, Volume 2, at page 7:

… (Arabic citation)

See also Balaraba v Shatacce (2006) 3 SLR PT. II PG. 109. (Meaning):

‘If a witness has not given an accurate testimony or is defective or has omitted an ingredient of the subject matter from what has been demanded from him, then the testimony by that witness will be dropped and cannot be accepted. That’s the majority view of all the Islamic jurists.’“

 

– Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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APPELLATE COURT’S DUTY – POWER TO SET ASIDE LOWER COURT’S JUDGMENT:

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“In light of the foregoing, I am compelled to conclude that the claimant (now Respondent) failed to establish his claim to the inheritance of the estate of Wangara. The Respondent does not have any right to the inheritance of the property in question.

Consequently, the judgment of the City No.1 Area Court, Kano is hereby restored, and the judgment of the Court of Appeal is consequently set aside.”

 

– Per MOHAMMED BABA IDRIS, J.S.C.

 

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MANDATORY CONDITIONS FOR HEARSAY EVIDENCE – REQUIREMENT OF EXPLICIT STATEMENTS FROM TRUSTED INDIVIDUALS:

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“According to Islamic jurisprudence, certain conditions must be fulfilled before hearsay evidence will be admissible. For example, in the Book of Tuhfatul Hukkam under Fasi Fi Shadatul Sam’i, the conditions are as follows:

1. 1. That there must be widespread knowledge on the subject matter, to the extent that the number of people ascertaining the same cannot be estimated;

1. 1. That there must be no doubt or dishonesty from the witness;

1. 1. That the witnesses must have stated that they heard explicitly from reliable people of impeccable character, or otherwise (See Albahajat Fi Sharhil Tuhfah, Vol.1, P. 255).

 

– Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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

2.Area Courts Law of Kano State

3.Sharia Court of Appeal Law of Kano State

4.Court of Appeal Act

5.Supreme Court Act

6.Quran 2 verse 282

 

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