CORAM
HON. JUSTICE A. M. TALBA JCA
HON. JUSTICE A. M. LAMIDO JCA
HON. JUSTICE M. DANJUMA JCA
PARTIES
1.UMMARU YAHAYA (suing for himself and on behalf of)
2. IBRAHIM TAMBAYA
3.. HASSAN ADAMU
4. ADAMU IBRAHIM
5. FTIMA AL-HASSAN
6. AMINA GARBA
7. UWALE ABUBAKAR
8. RABIU IBRAHIM
APPELLANTS
ALH. ADO ALAWO SABUWA
RESPONDENTS
AREA(S) OF LAW
APPEAL, EVIDENCE, ISLAMIC LAW OF SUCCESSION, PRACTICE AND PROCEDURE, PROPERTY
SUMMARY OF FACTS
The Plaintiffs (now Appellant) commenced an action against the Defendant (now Respondent) at the trial court (sharia court sabuwa) claiming share of the assets inherited by their mother from their grandfather. The Respondent conceded that his late father was the grandfather of the Appellants and the late grandfather’s estates have been shared and distributed among the beneficiaries, which included Hajiya Gambo, the Appellant’ mother.
The trial judge found out that both the Appellants and the Respondent consented to a fresh distribution of the estate and proceeded to redistribute the estate.
Not satisfied, the Appellants appealed to the Upper Sharia Court who partly recovered and upheld the decision of the trial Court.
Still aggrieved by the judgment of the Upper Sharia Court, the Appellant appealed to the court below who dismissed the appeal by affirming the decision of the Upper Sharia Court’s reversing the trial sharia court’s decision on the sharing of the farm but set aside the Upper Sharia Court decision on the house.
Further aggrieved by the judgment, the Appellant filed the instant appeal.
HELD
Appeal dismissed
ISSUES
1 Whether the lower court was right in affirming the decision of the Upper Sharia Court Dandume which set aside the decision of the trial Sharia Court, Sabuwa?
2 Whether the lower court was right to rely on the principle of prescription (Hauzi) to set aside the sharing of the common house between the Appellant and the Respondent same having been affirmed by the Upper Sharia Court Dandume?
3 Whether the lower court was right when it held that the Appellant lacked locus standi to institute this action and the statement of claim was defective?
RATIONES DECIDENDI
STATUTE BAR – WHERE A PERSON WHO FEELS CHEATED IN THE DISTRIBUTION OF AN ESTATE BECOMES STATUTE BARRED UNDER ISLAMIC LAW
In TUHFA Chapter 379, it was held thus: Meaning:
“Whoever feels he has been cheated in a distribution of estate after the distribution has been conducted for a long period of time and he has even made use of the share apportioned to him as his inheritance his right become statute barred”. Furthermore, while it is true that the share of a female heir does not rot, if the female stands by watching while what is rightly hers was taken over by an adverse party (even if it is inherited property), or sold to a stranger or even her co-heirs gifted it out, then her right of ownership is extinguished.
In the instant case, the property was sold, the buyer(s) paid and the proceed of the sale shared among the rightful heirs. In such a circumstance the item sold will not be recovered from the purchaser under whatever guise. No law or injunction supports the recovery of such sold estate under Maliki School of Thought. If in the instant case, late Gambo’s inherited share would be given to her though more than a century might have elapsed. That is the position of Islamic law.
See Bahja Volume 2 from Page 253-262. See also Ahkam Page 260 to 263 and Jawahirul Iklil Volume 2 at Pages 242 and 252, and A Guide to Jurists at Page 460-466. – Per Mohammed Danjuma, JCA
ESTOPPEL – LONG OWNERSHIP SERVING AS ESTOPPEL UNDER SHARIA LAW TUHFA Paragraphs 1239 to 1241
Meaning:
The nature of long ownership or being in custody of a property by blood brothers differs from that of those who are not blood brothers in the way and manner the person in ownership or occupation develops the property. If it pertains to long stay in a house in case of a farm, due consideration should be given to the way and manner he took good care of the farm. Then in such circumstances they have to be in occupation for a period of more than fourty (40) years but if they are not on good terms with their brother, the owner of the land and they stayed in the land for a period of ten (10) years but he did not eject them from the land, then the land becomes their property.
The principle of AL-TA’AJIZ is akin to Estoppel under Islamic Law in AL-BAHAJAH commentary on TUHFATUL AHKAM VOL. 1 Pages 82 to 84, see also MUKHTASAR KHALEEL Pages 261, it states thus:…
Meaning:
“The court closes the gate of litigation except in allegation of murder, detention, emancipations, consanguinty and repudiation of marriage…” – Per Mohammed Danjuma, JCA
LONG POSSESSION – THE EFFECT OF LONG POSSESSION UNDER ISLAMIC LAW – WHERE A PARTY WHO FEELS CHEATED IN THE DISTRIBUTION OF AN ESTATE FAILS TO COMPLAIN WITHIN TEN YEARS UNDER ISLAMIC LAW
The concept of ownership by long possession and enjoyment is recognized under Islamic Law (i.e. Hauzi/prescription). This doctrine postulates that where a person has been in peaceful enjoyment or possession of land without a challenge for ten (10) years he acquires a title by Hauzi (prescription) against any person (whether a heir or otherwise) who claims to be true or original owner of such property. In otherwords, where a party had been dealing with land in all manners as to show that he is the owner for a period of at least ten (10) years, he will be deemed to be the owner of the land. In the case of KWADAGE VS. BAKORE (1996) 3 NWLR (Pt. 437) 472 at 481 C-E, it was held thus:
“In Ihkamul-Akham… Hauzi (or long possession as described above) is regarded as analogous to evidence of a witness as it is a silent testimony in favour of the possessor. In the instant case, it is on record that the respondents had been in physical and undisturbed possession of the land in dispute for a period between 40 years prior to the Appellant’s action. Even if we accept the period of the respondent’s long possession as 18 years as admitted by the appellant, still the rule and principles of Hauzi are applicable to the case in accordance with the Maliki system of Sharia which fixed it at 10 years”.
In TUHFATUL HUKAM paragraph 979, it states thus:…
Meaning:
“Whoever feels he has been cheated in a distribution of estate after the distribution has been conducted for a long period of time and he has even made used of the share apportioned to as his inheritance his right becomes statute barred”.
On Page 38 of TUHFATUL HUKAM, it states thus:…
Meaning:
“He who makes mistake in delay in taking action with respect to any of his right for a long time has abandoned it…”
In MUKTASAR KHALEEL Page 261, it states thus:…
Meaning:
“The door of litigation is closed except in cases of murder, detention, emancipation, consanguinity and repudiation of marriage”. – Per Mohammed Danjuma, JCA
PRESCRIPTION – WHERE THE RELEVANT PERIOD OF PRESCRIPTION HAS ELAPSED AND THE ORIGINAL OWNER BRINGS AN ACTION TO RECOVER
Where the relevant period of prescription has elapsed and the original owner brings an action to recover if it is shown that the defendant (Respondent in this case) had been dealing with the property in all manners throughout the prescription period as an absolute owner, and additionally that the claimant was present and passive throughout the period and has not shown any valid reason that prevented him from acting throughout such period, the court will not entertain the claim of the claimant. See the cases of Babayo Vs. Diddi (1995) 3 NWLR (Pt. 383) 376, Hunare Vs. Nana (1996) 1 NWLR (Pt. 425) 381, Kwadage Vs. Bakore (1996) 3 NWLR (Pt. 437) 472, Dafagachi Vs. Ahmadu (2000) 3 NWLR (Pt. 647) 56. – Per Mohammed Danjuma, JCA
ADJUDICATION – ESSENTIAL PARTS OF REAL ADJUDICATION UNDER SHARIA LAW – CONDITIONS FOR HEARING A PLAINTIFF’S CLAIM IN ADJUDICATION UNDER SHARIA LAW IHKAMUL HAKAM pages 12 and 13:…
Meaning:
“The essential part of real adjudication which will render decision of a court in complete and defective unless they are all present are six, the judge, the plaintiff, the defendant, the subject of claim, the legal basis of the decision either from Quran or Sunnah or Ijma, the sixth is the procedure for the adjudication”.
It also states thus:…
Meaning:
“The hearing of plaintiff claim in respect of the subject matter of the claim is depending, upon two conditions:
1) certainty of the plaintiff claim against the defendant.
2) Explanation of the claim against the defendant
As the learned Khadis of the court below rightly noted, the case was not heard and determined with the proper party and what the trial court ought to have done right from the beginning is to dismiss the Appellant’s case. – Per Mohammed Danjuma, JCA
LOCUS STANDI – WHERE A LITIGANT LACKS LOCUS STANDI
It is settled law that where a litigant lacks the locus standi to initiate an action, the suit cannot be maintained hence the Court will also lack the competence to entertain the suit. – Per A. M. Talba, JCA
CASES CITED
STATUTES REFERRED TO
1. Court of Appeal Rules