ALHAJI FATIHU IDRIS & ANOR V. ALHAJI GALI IDRIS

CORAM

Mohammed lawal garba JSC

Ibrahim mohammed musa saulawa JSC

Jamilu yammama tukur JSC

Abubakar sadiq umar JSC

Mohammed baba idris JSC

PARTIES

1. ALHAJI FATIHU IDRIS

2. ESTATE OF IDRIS

APPELLANTS 

ALHAJI GALI IDRIS

RESPONDENTS 

AREA(S) OF LAW

ISLAMIC LAW, INHERITANCE LAW, GIFT LAW, PROPERTY LAW, REVOCATION OF GIFTS, EVIDENCE LAW, APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This case originated on September 15, 2010, when the 1st Appellant filed a suit in a representative capacity, asking the trial Court to distribute the estate of his late father, Alhaji Idris Usman, to the respective heirs. The properties in dispute included four houses: House No. 52A Fagge Ta Kudu, Kwari market, Fagge Local Government; House No. 81 at Chedi Quarters, Kano Municipal Local Government; House No. 343 Sarkin Yaki Normans land, Fagge Local Government; and House No. 44 Sunusi Street, Gabon Gari, Kano.

The Respondent (Alhaji Gali Idris) denied the Appellant’s claim entirely, contending that their deceased father had made a gift of the four houses to him during his lifetime, and that the gift was never revoked. The Appellant, on the other hand, claimed that their father had revoked the gift before his death.

The trial Sharia Court ruled in favor of the Appellant, holding that the father had effectively revoked the gift during his lifetime, and ordered the distribution of the properties among all heirs according to Islamic law. The Respondent appealed to the Upper Sharia Court of Appeal, which affirmed the decision of the trial Court. Dissatisfied, the Respondent further appealed to the Sharia Court of Appeal, Kano State, which allowed his appeal, ruling that the houses belonged to the Respondent as gifts from their father that had not been validly revoked. The Appellant then appealed to the Court of Appeal, which dismissed the appeal and affirmed the judgment of the Sharia Court of Appeal. This led to the present appeal to the Supreme Court.

HELD

1.The appeal was dismissed.

2.The judgment of the Court of Appeal delivered on February 17, 2017, in Appeal No. CA/K/263/2012 was affirmed.

3.The Supreme Court held that under Islamic Law, although a father has the right to revoke a gift made to his child, such revocation would not be valid if certain conditions exist, including if the child had married after receiving the gift, if the child had made significant improvements to the property, or if the father had not physically repossessed the property before his death.

4.The Court found that the Respondent had been in possession of the houses for approximately 15 years (1989-2004), during which time he had gotten married, had children, and made repairs and improvements to the properties. These circumstances rendered the attempted revocation invalid under Islamic Law.

5.Additionally, there was no evidence that the deceased father had physically repossessed the houses before his death, which was a necessary condition for a valid revocation under Islamic Law.

ISSUES

1.Whether the parties’ late father had effectively revoked the gift of the 4 houses he made to the Respondent before his (father’s) demise?

2.Whether the evidence of prosecution witnesses was destroyed upon cross-examination?

3.Whether repossession/taking back of the revoked gift is a condition precedent for the validity of revocation of gift made by a father to his son?

RATIONES DECIDENDI

HIBAH (GIFT) – ESSENTIAL CONDITIONS FOR A VALID GIFT:

“The term gift is known as ‘Hibah’ in Islamic Law, thereby denoting the transfer of a corpus a thing by its owner (donor) to the beneficiary of the gift (donee). Under Islamic Law, for a gift to be legally binding and valid, it must satisfy some basic conditions: i. A declaration which is capable of conveying the notion of giving made regarding the gift by the donor. ii. An acceptance of the corpus of the gift by the donor or representative. iv. The possession (custody) of the corpus of the gift should be handed or transferred to the donee or the representative thereof.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

REVOCATION OF GIFTS – PROHIBITION AND EXCEPTIONS:

“It is equally an essential principle of Islamic Law, that revocation of a gift should not be encouraged. According to a prophetic tradition, whoever revokes a gift is likened to a dog that devours its own vomit. See DUDUWA SONG VS. LAWAL SONG; CA/J/1175/97. (13/7/2000). Its trite, that the right of a parent to revoke a gift (Hibah) made to his child is traceable to the well prophetic tradition: ‘On the authority of Ibn Umar and Ibn Abbas, may God be pleased with both of them said: It is not lawful for a Muslim to give out something and then go back on his words except the male parent in what he gives to his child.'” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

NECESSITY OF REPOSSESSION FOR VALID REVOCATION:

“If a gift becomes concluded with the taking of possession of the gifted item, it stands to reason that revocation of such a gift will also become completed only upon declaration/pronouncement and recovery of possession from the donee back to the donor. A sort of return to sender scenario. Thus, a gift is adjudged incomplete/invalid and void unless it has been delivered or handed over to/by the person to whom it was made. Similarly, in the exercise of the right of revocation of a gift; it remains incomplete/ineffectual unless it has been returned, recovered and repossessed from the person it was previously given.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

CONDITIONS THAT INVALIDATE REVOCATION OF GIFTS:

“It is a trite principle of Maliki school of thought that once a gift is completed and the recipient has taken possession of it, it is not permissible to revoke it. This is based on the Prophetic hadith: ‘The one who takes back his gift is like the one who swallows his vomit.’ However, there are some exceptions related to specific cases. One of such exceptions is for the gift of a father to his child whether small or large. Thus, the father may retract the gift by retrieving it even if the child had taken possession of the property. However, it is worthy of note that this revocation is only valid subject to five conditions as mentioned hereunder: (i) The child shall not have married after receiving the gift; (ii) He did not incur a debt after receiving the gift; (iii) the property must not have changed from its original form; (iv) the donee shall not have effected any changes on the property; and (v) Neither the donor nor the donee is sick. If any of the aforementioned occurs the right to retrieval shall lapse.” — Per MOHAMMED BABA IDRIS, J.S.C.

BINDING NATURE OF TESTIMONY:

“The fundamental doctrine of Islamic Law is very unequivocal regarding the statement by a party or testimony of the witness thereof is binding and irrevocable, thus cannot be withdrawn, denied, or retracted, except in respect of criminal matters.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

THIRD PARTY INTERESTS AND VALIDITY OF REVOCATION:

“From what transferred before us, it is clear that the gift made by the fate Idris Usman to the Appellant it took about 15 years or more in the instance, we are of the view that, even if the deceased has the right to revoke the gift he made to the Appellant it will not be possible for the Court to enforce or legalize it until it investigate property and find out the problems attached to the properties. For instance, to find out whether the right of a 3rd party is attached to it, wears and tears attached to the properties as daily happening or that or that same part of the estate no longer been in existence. Failure to conduct such investigation, even if it is allowed to revoke the gift will only result to injustice.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

INTENTION AND ACTION IN REVOCATION:

“Proclamation of revocation, either verbally or in writing is expression which translates to manifestation of intention. Physical taking back possession is action which is a condition precedent to the exercise of right of revocation of gift vested in parents with regard to gifts made to their children.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

RESPONSIBILITY OF A JUDGE UNDER ISLAMIC LAW:

“Undoubtedly, the responsibility of a judge under Islamic Law is likened to a trust which Allah vested in him to dispense justice to the people, without fear or favour, affection or ill-will. In Surah An Nisaa, chapter 4, verse 58, Allah (SAW), says: ‘Allah doth command you to render back your trusts to those to whom they are due; And when ye judge between people. That ye judge with justice; Verify, how excellent is the admonition which he gives you; Allah is All-Hearing, All-seeing.'” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

CLASSIFICATION OF JUDGES:

“The Holy prophet was equally reported to have categorized judges into three, two of whom would go to hell, and the third to paradise: Narrated Buraida: Allah’s Messenger (PBAH) said: AL-QUADAT (judges) are of three types, two of whom would go to hell and one to paradise. The one who would go to Paradise is a man who knows what is right and gives judgment accordingly. However, a man who knows what is right but does not give judgment accordingly and acts unjustly in his judgment, would be in the Hell-Fire. Likewise, a man who does not what is right and (yet) judges people with ignorance, would (also) be in the Hell-Fire.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

FAIRNESS IN DISTRIBUTION OF GIFTS TO CHILDREN:

“The whole essence of the prophetic traditions aforementioned, is to the effect that parents should strictly observe equity and fairness in distributing or donating properties to their children. That’s to say, a parent should not make a gift of his property to his child to the exclusion of others.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

CREDIBILITY OF EVIDENCE IN GIFT REVOCATION:

“In the instant case, there is so far no cogent evidence to establish that the deceased person had prior to his demise regained possession of the four houses he gifted to the Respondent.” — Per IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

BURDEN OF PROOF IN GIFT REVOCATION:

“In the instant appeal, the father of the respondent attempted to revoke the gift but there is no evidence that he re-possessed same physically. Under Islamic jurisprudence in situation like that, there cannot be a valid revocation of the gift. They remained the property of the respondent. Again, since the respondent had made repairs to the houses and got married, the right to revocation of the gift has been lost. The onus of proof of valid revocation of the gift of the said houses was on the appellant. This one under Islamic Law they failed to discharge.” — Per ABUBAKAR SADIQ UMAR, J.S.C.

LAPSE OF RIGHT TO RETRIEVAL:

“I agree with the findings of the Court below that there was no cogent evidence to establish that the deceased person had prior to his demise regained possession of the four houses he gifted to the Respondent herein. I am therefore not persuaded to interfere with the sound reasoning of the lower Court which has not been shown to be perverse.” — Per MOHAMMED BABA IDRIS, J.S.C.

CASES CITED

STATUTES REFERRED TO

1.Quran, Surah An Nisaa, Chapter 4, Verse 58

2.SHARHU BULUGUL MARAMI (by SUBULUS SALAAM)

3.AL-FAWAKIHUL DAWWANI by AL-SHEIKH AHMAD B. GHUNAIM

4.NIZAMUL QADA’I FI SHARIATIL ISLAMIYYAH by Dr. ABDULKARIM ZAIDANI

5.AS-HALUL MADARIK, by AL-KASHNAWI

6.TABSIRATUL HUKKAM by IBRAHIM IBN FARHUN

7.SAHIH MUSLIM, BOOK 12; KITAB AL-HIBAT (THE BOOK OF GIFTS)

8.SAHIH BUKHARI

9.CANONS OF ISLAMIC JURISPRUDENCE (A TRANSLATION OF AL-QAWANIN AL-FIQHIYYA OF IBN JUZAY AL-KALBIY)

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