3PLR – ALHAJI INUWA BABA V. HAJIA GAMBO BABA
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com nd info@lawnigeria.com or text 07067102097]
ALHAJI INUWA BABA
V.
HAJIA GAMBO BABA
COURT OF APPEAL, (KADUNA DIVISION)
FRIDAY, 31ST MAY, 1991
CA/K/38s/90
3PLR/1991/58 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
UTHMAN MOHAMMED, J.C.A. (Presided)
SANI SALITH AIKAWA, J.C.A.
MURITALA AREMU OKUNOLA, J.C.A. (Read the Leading Judgment)
REPRESENTATION
- A. Sadiq -for the Appellant.
Respondent in person.
OTHER ISSUES
ESTATES ADMINISTRATION AND PLANNING:– Succession under Islamic law – Share of inheritance – Where wrongfully withheld – How resolved
CHILDREN AND WOMEN LAW: Women and inheritance/Religion – Dispute over share in inherited property – How treated under Islamic/Sharia law
RELIGION AND LAW – ISLAMIC LAW:– Matters over which the Sharia Court of Appeal has appellate – Admission made in lieu of court order to swear by the Koran – Effect – Sharia Court of Appeal
RELIGION AND LAW – ISLAMIC/SHARIA LAW:- Admission under Sharia law procedure – Refusal to take oath in mosque to affirm the truth of a matter – Subsequent embrace of the other party and concession of right to the subject matter of dispute – Whether evidence of admission of the facts of the issues raised – Effect of valid admission under Islamic law
DEBTOR AND CREDITOR:- Loan/pledge secured by way of right to portion of inheritance – Right of pledgee over said property – Where pledge redeemed by payment of loan – Liability of pledgee where property had been interfered without authority of pledgor
PRACTICE AND PROCEDURE – ACTION:- Proceedings under Islamic law procedure – What constitutes admission of the facts of the issues raised – Whether refusal to take prescribed oath and concession of the asserted right of the opposing party regardless of motivation qualifies
PRACTICE AND PROCEDURE – JURISDICTION:- Whether the Sharia Court of Appeal has jurisdiction in matters of succession
MAIN JUDGEMENT
OKUNOLA, JCA. [Delivering the Lead Judgement]
This is an appeal against the decision of the Sharia Court of Appeal, Kano which affirmed the judgment of Kasuwa Area Court, Kano which confirmed the respondent the ownership of two rooms with a path way in a house situated at Margan Kwarzi Quarters, Kano City, Kano (hereinafter referred to as the disputed property) left by her deceased father Malam Baba, as shared by the Emir’s court.
The facts leading to this appeal emanated from the Kasuwa Area Court Kano where the respondent sued the appellant in respect of her share in the disputed property inherited from their father. The House was divided and each was shown his or her own share. The respondent who is the full sister of the appellant was then resident in their matrimonial home at Maiduguri when she was in pressing need for money, she begged her brother the appellant for help but the appellant declined saying she could sell her property or her share of the inheritance to him. The respondent refused. The appellant then gave her the alternative of pledging the inheritance to him. She accepted the proposal and demanded N200.00 from the appellant who on his return to Kaduna sent only N140.00 to her through one Shehu Lawal. The respondent thereafter went to Maiduguri and when her marriage was dissolved she returned to Kano and discovered that the appellant had demolished the inherited house including her own portion and that of her mother without getting their consent or approval. She discovered that he had already rebuilt the house and made it ready for his personal use. When she challenged the appellant over this demolition he told her not to bother since
what he had is hers and what she owns is his. According to the respondent before us, “it was when he said that I should leave the house and I refused he said, I have sold the House to him: When I went to Lagos for a marriage
ceremony I came and met my properties taken to court by him. He told the court that the properties belonged to a woman whose whereabouts, he did not know. I came back and met that he had taken them to court. He said that I had
to sleep in the parlor. He said I must leave the house as I have sold my share.”
It was as a result of this threat that the respondent sued the appellant at the Kasuwa Area Court. After reviewing the evidence of the 5 witnesses by the appellant and the 3 witnesses by the respondent, judgment was entered in favour of the respondent. The appellant being dissatisfied with the said judgment of the Area Court appealed to the Sharia Court of Appeal. The court heard the appeal, reviewed the facts and also visited the Locus in quo. Appellant was never present in court until judgment was about to be delivered. Respondent was directed to complement her evidence with an oath. She then narrated the following dialogue, which took place between her, and the appellant.
We came out of the court to go and swear and he the appellant begged me and stopped me to go back and say that I have sold the house to him. I refused. Then he said I should go back to court. On our return to the court he told the
court that I was his sister and that he knew the mightiness of the Quran and as such he will not permit me to swear.
He agrees with any assessment made on the share I inherited. They went and divided the house. Her share was then estimated at N1,240.00 and when the payment was to be made the appellant’s lawyer said they have appealed to the
Court of Appeal at Kaduna. She had earlier paid him N140.00 which she received from him. The Sharia Court of Appeal gave judgment in favour of the respondent and dismissed the appeal. The Court ordered the respondent to go and construct a wall in her portion which she did and this had been the position ever since.
I have taken the patience for the above comprehensive review of events leading to the present appeal to avoid a repetition of same since both parties agreed on these facts before us as given by the respondent in her submission.
However, it is against the concurrent judgment of the Kasuwa Area Court Kano and Sharia Court of Appeal Kano that the appellant has brought this appeal before us.
The issues for determination in this appeal as formulated by the appellant in his brief from the grounds of appeal filed are as follows: –
- Whether the Sharia Court of Appeal holden at Kano had jurisdiction to entertain this appeal filed before it.
- Whether there was a proper basis for the order made by the SCA having regards to the provision of Maliki Law.
Both parties made submission viva voce before us.
Learned Counsel to the appellant Mr. R.A. Sadiq holding A.T. Modibo’s brief adopted the appellant’s brief filed herein. In addition Learned appellant’s counsel submitted that the matter in this appeal not being for a share of inheritance since the inheritance has been shared, the Sharia Court of Appeal lacks jurisdiction under S 242 (2) (C) of the 1979 Constitution. This was his argument both in the Brief and viva voce to dispose of Issue No. 1 in this appeal.
With respect to Issue No. 2, Learned Counsel argued that all the witnesses called by the respondent did not testify in accordance with her claim and wondered why the trial court went ahead to base its judgment on such evidence.
When Counsel’s attention was referred to page 35 of the Records, he said he had noted the passage where the appellant informed the Sharia Court of Appeal that he accepted what had been given by the SCA to the respondent.
I have gone through the submissions made by both parties in respect of the two issues for determination. It is intended to give my views on these submissions vis-a-vis the Record of Proceeding and the authorities on the issues
raised.
On the first issue touching on the jurisdiction of the Sharia Court of Appeal to entertain the present appeal, learned Counsel to the appellant submitted that the claim in dispute is outside the jurisdiction of the Court of Appeal since
the inheritance has been divided. I have considered this submission. I will say that it is trite that the plaintiff’s claim at the lower Court determines the jurisdiction of the court in a situation like this. See our decision in Goni Umaru v
Gajere Dawa & anor Unreported Appeal No. CA/J/60s/90 delivered on 11/2/91 as well as the Supreme Court decision on the same issue in Alhaji Umaru Abba Tukur v Government of Gongola State (1989) 9 SCNJ 1: (1989) 4 NWR (pt.117) 517.
The claim of the plaintiff/respondent at the Kasuwa trial Area Court as contained on page 9 of the Records is as follows:
The plaintiff, Hajiya Gambo Mazan Kwarai said she is suing her elder brother Alhaji Inuwa Baba, that a house which they inherited from their father was divided among them from which she possessed two (2) rooms and half of the entrance pathway (Soro), but when he saw that she was not around he just demolished the house and have it rebuilt, and when she returned he refused to gave her any portion.
From the above claim it is clear that the dispute in this case is about a share of inheritance which has been withheld from the respondent by the appellant. The question to ask is whether this dispute qualifies as succession to bring it
within the ambit of S.242 (2) (c) of the 1979 Constitution to confer jurisdiction on the Sharia Court of Appeal.
This issue came for determination by this Court in the cases of Umaru Alhaji Garba v Adamu Dogon Yaro (1991) 1 NWLR (pt 165) 102, p.105 and Alhaji Adamu Marthodu v Saidu Sarki Unreported Suit No. CA/J/215/89 delivered
on 25/10/90 where this Court interpreted the provision of S.242 (2)(c) of the 1979 Constitution on when a dispute becomes question of succession as follows:
Before a dispute could become a question regarding the issue of succession in order to confer jurisdiction on Sharia Court, it must make succession an issue. Thus, the instances in which issue or dispute could be made subject of succession as envisaged by section 242(2) (c) of 1979 Constitution includes the following: viz –
(a) A dispute over the failure to distribute the estate after the death of the deceased.
(b) A dispute over the devolution of the estate between the heirs.
(c) A dispute over any heritable estate which a person withholds away from their heirs.
(d) A dispute over the right to take a particular property within the estate.
(e) A dispute over a gift or will of a particular property said to have been made by the deceased in his lifetime.
(f) A dispute over payment of a debt incurred by the deceased in his lifetime from the estate he or she had left behind.
(g) A dispute over the exclusion of an heir from inheriting from the estate.
And all such dispute which can be attributed to the estate succession”.
It is clear that the issue for determination in this appeal falls within (c) above – a dispute over any heritable which any person withholds away from the heirs. Consequently, the dispute qualifies as one of succession and falls within the
ambit of S.242(2) (c) of the 1979 Constitution as amended (supra). I therefore hold that the Sharia Court of Appeal has jurisdiction to entertain the appeal.
As regards the 2nd issue for determination. I have considered the argument of both sides on this issue regarding the adequacy or otherwise of the judgment appealed against. In this regard it is necessary to recall the reaction of the
parties at the Sharia Court of Appeal to the distribution of the inheritance made by the court. I observed from the records that the appellant agreed with the manner in which the court resolved the dispute and pledged to allow the
respondent to have the share given to her. He also pledged to pay the respondent the amount of her share which was assessed to be N1,240.00. In this vein, at page 35 of the Records after the appellant had stopped the respondent from going to the mosque to take an oath, he requested the Court for permission to tell the Court something. He was granted the request to speak and he stated on Lines 5 – 8 of p.35 before the Sharia Court of Appeal as follows: –
“Gambo (Respondent) is my sister and I know the mightiness of the Qur’an, I have accepted, whatever is confirmed to be hers should be removed for him.”
After saying this the respondent thanked her. The question to ask now is what is the effect of the above statement by the Appellant under Islamic Law? It is simply an admission of the facts of the issues raised by the respondent as well
as of the resolution of the dispute by the Sharia Court of Appeal. This was done on oath by the appellant, hence the court invited Alhaji Baba Nana and Alhaji Tsoho two male witnesses to witness the admission to make it legally valid as required by the Islamic Law procedure.
It is necessary to examine the legal effect of the appellant’s valid admission made before the Court upon which the judgment of the Court was based. The position under Islamic Law is similar to that of common law in that a
confession or admission by a sane adult binds him. See MUKTASAR KHALIL Vol. 11 p.133. This principle is borne out of the Islamic Law maxim that where a claim is admitted there is no need to call any witness. See Ramatu
Adule Issa v Issa Alabi (1961) 1 SLRN 177 and Saa & Savatu v Ibrahim Iro (1961- 1989) 1 SLRN 189 p 190. From these authorities, I hold that the Appellant’s admission before the Sharia Court of Appeal upon which the judgment of the court was based binds him. What is more, I have gone through the Records as well as the submission of the respondent. It was confirmed that the respondent took N140.00 from the appellant and has paid back the amount
there removing indebtedness on her part to the appellant in respect of her share of the inheritance claimed. I hold that the respondent has freed her share from any pledge, sale or mortgage as there is no more evidence of any such
obligation. In consequence, I find no reason to disturb the judgment of the Sharia Court of Appeal confirming the decision of the Kasuwa Area Court since they are both based on valid principles of Islamic Law.
On the totality of the foregoing this appeal fails as it lacks merit and it is hereby dismissed. The judgment of the Sharia Court of Appeal Kano dated 1/16/89 confirming the judgment of the Kasuwa Area Court is hereby affirmed.
The respondent is entitled to the costs of this appeal which I assess at N450.00
MOHAMMED, J.C.A.:
I entirely agree with the opinion of my learned brother, Okunola J.C.A, in the lead judgment just read, that this appeal ought to be dismissed. The appellant had admitted before the Sharia Court of Appeal that he was in agreement with the claim of the respondent. In Islamic Law such an admission is regarded as admission as to interest. The Sharia Court of Appeal acted on that admission and divided the inherited house and gave Gambo her share.
It is surprising to note that after the appellant had told the court that he knew the Mightiness of the Quran and permitted the court to give the respondent whatever is her entitlement he has to file this appeal against the decision of the Sharia Court of Appeal. It is a point to ponder, whether the appellant really knew the Mightiness of the Quran.
My learned brother has made detailed review of all the salient points raised in this appeal and I agree with him that this appeal is without merit. It is accordingly dismissed. I abide by the orders made, in the lead judgment, on costs.
AIKAWA, J.C.A.:
I agree.
Appeal dismissed.
