HUSSAM YUSUF HAJAIG & ANOR v. DELE YUSUF

CORAM

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

PARTIES

1. HUSSAM YUSUF HAJAIG

2. IHAB YUSUF HAJAIG

APPELLANTS 

DELE YUSUF

RESPONDENTS 

AREA(S) OF LAW

ISLAMIC LAW, EVIDENCE, INHERITANCE LAW, PATERNITY, BURDEN OF PROOF, WITNESS TESTIMONY, PRACTICE AND PROCEDURE, FAMILY LAW

SUMMARY OF FACTS

The Respondent, Dele Yusuf, instituted suit No. 141/97 before the Upper Area Court 1, GRA, Zaria, Kaduna State (trial Court) against the Appellants for the distribution of the Estate of the Late Yusuf Hajaig, a Nigerian/Lebanese Muslim, whom he claimed to be his father.

The Respondent claimed that his father, Yusuf Hajaig, who was of Lebanese origin but naturalized as a Nigerian, died in Lebanon in 1996. According to the Respondent, the deceased left behind one wife, four male children (including himself, Hussam Hajaig, Ihab Hajaig, and Babiya Hajaig), and three female children (Roller Hajaig, Muna Hajaig, and Maya Hajaig). The Respondent sought the distribution of properties left by the deceased, which included United Oil Mills, Flour Mills, a large storage house, Block Industry, and various residential properties, according to Islamic law.

The Appellants denied the Respondent’s claim of being a son to the Late Yusuf Hajaig and knowing him at all. During the trial, the Respondent testified that his mother, Ige from Ogun State, married Yusuf Hajaig in Lagos in 1946, and that he was born in 1950. He stated that his parents separated in 1953 when he was 4 years old, and his mother died in 1964. He lived with his grandmother until 1965 when he finished schooling and joined the army, and returned to Yusuf’s house in 1970.

The Respondent called three witnesses: Alhaji Danlami Kaduna (PW1), Muhammed Musa (PW2), and Kate Opiti (PW3). The Appellants did not call any witnesses but rested their case on that of the Respondent.

The trial Court dismissed the Respondent’s claim, finding that he failed to prove the marriage between his mother and the alleged father, which was necessary to establish sonship and the right to inheritance. The Respondent appealed to the Sharia Court of Appeal, Kaduna State, which allowed the appeal and set aside the decision of the trial Court. The Sharia Court of Appeal held that the Respondent was Yusuf’s son and among his beneficial heirs.

The Appellants appealed to the Court of Appeal, Kaduna Division, which dismissed their appeal and affirmed the decision of the Sharia Court of Appeal. Dissatisfied, the Appellants brought the final appeal to the Supreme Court.

HELD

1. The appeal was dismissed.

2. The Supreme Court held that the unimpeached and direct evidence of PW1 and PW2 on the paternity of the Respondent by the Late Yusuf Hajaig expressly and undeniably showed that the Respondent established that he was related to the deceased by blood or Nasab/Qarabah, being his biological son.

3. The Court held that the Respondent’s claim was not based on the alleged marriage between his mother and the Late Yusuf Hajaig, but rather on the paternity of the Respondent by the deceased Yusuf Hajaig.

4. The Court affirmed that in Islamic Law, only a father can disown the paternity of a child by way of oath of Li’an or imprecation, and that the Appellants lacked the legal capacity to properly, validly, and effectively deny and challenge the paternity of the Respondent.

5. The Court found that the evidence of PW3, a non-Muslim, was acceptable and admissible in support of the Respondent’s claim based on the principle of necessity in Islamic law.

6. The judgment of the Court of Appeal delivered on the 30th of March, 2017, was affirmed in its entirety, with an order that parties shall bear their respective costs of prosecuting the appeal.

ISSUES

1. Whether the Respondent discharged the evidential burden of proof squarely placed on him in accordance with the standard of proof laid down by Sharia?

2. Whether the learned Justices of the Court below were right in holding that the evidence of PW3, a non-Muslim, was admissible in Islamic law?

3. Whether there was proof, as required by Islamic Law, that late Yusuf Hajaig indeed acknowledged the paternity of the Respondent?

4. Whether the learned Justice of the Court of Appeal rightly evaluated the evidence of the PW2?

RATIONES DECIDENDI

BURDEN OF PROOF – DUTY OF A CLAIMANT IN ISLAMIC LAW

“Learned Counsel for the parties are right in their submissions that in Islamic Law, the burden of proof of a claim made or brought before a Court is initially placed on the claimant or the person who makes or brings the claim on the basis of the facts which he asserts as giving rise to the claim. This position is the same in both civil and criminal matters, causes or cases brought to the Courts and it is discharged in line with prescribed procedure on the number and qualification of witnesses as well as the standard of proof in the particular case.” – Per MOHAMMED LAWAL GARBA, J.S.C.

STANDARD OF PROOF – REQUIREMENTS FOR ESTABLISHING CIVIL CLAIMS IN ISLAMIC LAW

“The general principle of proof in Islamic Law is that in civil claims involving both moveable and immovable property, proof is required to be by the credible evidence of two (2) unimpeachable male witnesses; or evidence of one (1) male witness and two (2) or more unimpeachable female witnesses, or the evidence of one (male witness or two female witnesses and/plus the claimant’s complimentary oath.” – Per MOHAMMED LAWAL GARBA, J.S.C.

COMPETENCE OF PARTIES AS WITNESSES – RULE AGAINST SELF-TESTIMONY

“However, under Islamic Law, a party to a case is not competent to testify as witness in the case, unlike the procedure under the common law and so a plaintiff must call independent witnesses, male or/and female, as the case may be, in order to prove his claim and cannot testify in support of his claim.” – Per MOHAMMED LAWAL GARBA, J.S.C.

CROSS-EXAMINATION – EFFECT OF FAILURE TO CHALLENGE EVIDENCE

“In Islamic Law, after a witness concluded his evidence before a trial Court, the adversary is asked by the Court if he agreed with the evidence or wishes to comment or ask the witness questions by way of cross-examination with a view to challenging or attacking the evidence and/or character of the witness for the sole purpose of impeaching the evidence or the witness in person. If the party succeeds in impeaching the evidence and/or the witness in person, the evidence shall not be accepted and accorded weight in the judgment/decision by the Court.” – Per MOHAMMED LAWAL GARBA, J.S.C.

REQUIREMENTS FOR INHERITANCE – CONDITIONS TO BE FULFILLED

“In Hamza v. Yusuf (2013) 1 SQLR (pt. II) 55, a legal heir to the Estate of a deceased person who claims a right to inherit the Estate is required to fulfill the following conditions:- (1) That death of the praepositus has occurred DE FACTO OR DEJURE (2) that the claimant is a bonafide legal hear 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 had exclusive ownership, free of any encumbrance. (4) Whether the praepositus owed any debt and (5) Whether the praepositus made a will.” – Per MOHAMMED LAWAL GARBA, J.S.C.

ESTABLISHMENT OF RELATIONSHIP FOR INHERITANCE – GROUNDS OF INHERITANCE

“The second step is the burden upon the claimant heir to establish his legal relationship with the deceased through any of the known grounds of inheritance:- (a) Blood (Nasab/Qarabah) (b) Marriage (NikahÆawaj) (c) Emancipation (Itqu/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 LAWAL GARBA, J.S.C.

PATERNITY DENIAL – EXCLUSIVE RIGHT OF THE FATHER

“In addition, the Court below is also right in the finding that in Islamic Law, only a father can disown the paternity of a child by way of oath of Li’an or imprecation and since the Appellants did not call evidence at the trial of the Respondent’s claim, there was no evidence whatsoever to challenge, let alone controvert the credible evidence of the Respondent’s paternity by Late Yusuf Hajaig given by the unimpeachable PW1 and PW2 or the requisite oath of Li’an or imprecation by the deceased in respect of the Respondent. The Appellants lacks the legal capacity to properly, validly and effectively deny and challenge the paternity of the Respondent.” – Per MOHAMMED LAWAL GARBA, J.S.C.

ADMISSIBILITY OF NON-MUSLIM TESTIMONY – EXCEPTION BASED ON NECESSITY

“As the only person available who personally saw and even participated in the events leading to the reasonable presumption of a marriage between the people she knew personally and closely, with details of the guardian (Waliy), witnesses, dowry and the offer and acceptance by the parties e.t.c., the evidence of PW3 was therefore direct, positive and was not in any material manner or way, impeached or effectively discredited under cross-examination. Her character was also not successfully impeached. In the above circumstances, the evidence of PW3 was acceptable and admissible in support of the claim by the Respondent that the Late Yusuf Hajaig was his father and he was entitled to inherit him as one of his legal heirs.” – Per MOHAMMED LAWAL GARBA, J.S.C.

PROOF OF PATERNITY – DIRECT EVIDENCE OF ACKNOWLEDGEMENT

“As can easily observed, PW2 was not cross-examined on his evidence of knowing the Late Yusuf who he said, unequivocally, was the father of the Respondent as shown in the under lined portion of his evidence above. This is a positive and direct evidence by PW2 from his own knowledge and not hearsay, of the paternity of the Respondent as claimed in the claim before the trial Court, which was not even challenged, discredited or impeached under cross-examination by the Learned Counsel for the Appellants at the trial Court.” – Per MOHAMMED LAWAL GARBA, J.S.C.

SUFFICIENCY OF EVIDENCE – EFFECT OF UNIMPEACHED TESTIMONY

“This evidence of PW2, clearly supports the claim of the Respondent and so is material, relevant and credible in proof of the claim that the Late Yusuf Hajaig was in fact, his father. This evidence is admissible in proof of the fact that the Late Yusuf Hajaig was in law, the father of the Respondent and that the Respondent is a legal heir entitled to share in the Estate left behind by his father when he died since it was not impeached.” – Per MOHAMMED LAWAL GARBA, J.S.C.

CONDITIONS FOR ADMISSIBILITY OF HEARSAY EVIDENCE – STRINGENT REQUIREMENTS

“Hearsay evidence under Islamic law, is not inherently inadmissible but must fulfill specific conditions to attain probative value. The classical text TABSIRATUL HUKKAM, PAGES 428-430, delineates seven stringent conditions for the admissibility of hearsay evidence. These conditions ensure that such testimony aligns with the principles of justice and the preservation of rights.” – Per MOHAMMED BABA IDRIS, J.S.C.

TESTIMONY OF NON-MUSLIMS – EXCEPTIONS TO INADMISSIBILITY

“Non-Muslim Testimony Against a Muslim in cases of Necessity: Jurists such as Ibn Taymiyyah and Ibn al-Qayyim extend the admissibility of non-Muslim testimony to all cases of necessity, whether during travel or residence, and in all matters where Muslims are unavailable. This ruling is grounded in analogy with the acceptance of non-Muslim testimony in cases of wills.” – Per MOHAMMED BABA IDRIS, J.S.C.

EVALUATION OF WITNESS TESTIMONY – CORROBORATION AND NECESSITY

“In the light of these authorities, I am of the considered view that the testimony of non-Muslims in Islamic law matters should be accepted in cases of necessity or where it is corroborated by the testimony of Muslim witnesses, especially in countries like Nigeria where Muslims and non-Muslims live together peacefully and in fact even share blood relationship in many cases. In the instant appeal, the combined testimonies of PW1, PW2 and PW3 reinforce and corroborate each other, creating a coherent narrative that sufficiently establishes the blood relationship between the Respondent and the late Yusuf Hajaig (i.e., that Respondent is the son of Yusuf Hajaig – father of the Appellants).” – Per MOHAMMED BABA IDRIS, J.S.C.

CASES CITED

STATUTES REFERRED TO

• Holy Qur’an

• AL-BAIHAQI, A.H. (1973) SUNAN- AL-KUBRA, DAR AL-FIKR

• Tuhfatul Hukkam (English translation by Bello M. Daura)

• Ihkamul-Ahkam; Short Commentary on Tuhfatul Hukkam

• Jawakhirul-Iklil

• Muhahibul-Khalliq

• TABSIRATUL HUKKAM

• MAWAHIB AL-JALIL

• ASNA AL-MATALIB

• AL-MUGHNI

• AL-MUHALLA

• AL-TURUQ AL-HUKMIYYAH

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