Mohammadu Baraya V. Hajiya Biba Belel & Anor (1998)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is an appeal by Muhammadu Baraya against the decision of the Adamawa State Sharia Court of Appeal sitting in Yola, now court below. At the Upper Area Court No. 1 Yola, herein trial court, the appellant was the defendant and the 1st respondent was then the sole plaintiff and instituted the action, which gave rise to this appeal, against the appellant seeking to inherit the estate of late Selbe Manya (who was alleged to be an emancipated slave) in accordance with the principles of Islamic law. The subject matter in dispute is a house to be distributed among the lawful heirs of a slave deceased. It was claimed by the plaintiff that the defendant now appellant sold out the house in dispute and that the sale be set aside. The crux of the matter, to my own understanding, is that the owner of the house in dispute was her father, and when the said slave died the house devolved to her by the dictate of Sharia.
Five witnesses were called by the 1st respondent, as plaintiff, the appellant also called five witnesses, The evidence of PWs 2, 3, 4 and 5 were expunged by the trial court as their evidence was said to be hearsay and inadmissible.
The same court however accepted the evidence of DWs 1, 2, 3 and 4 to the effect that before his death Selbe Manya went to his new master after the death of the 1st respondent’s father seeking to be freed from the bondage and shackles of slavery. Their evidence confirmed that the appellant obliged him and in the presence of those witnesses and other people Selbe Manya was declared a freeman.
The newly free-man then sought that two rooms from the house in dispute be given to his wife – his request was on the spot granted by the defendant who even named Selhe Manya. Ahmadu after kolanuts were distributed to people. The trial court simply preferred the evidence adduced by the defence and held that the 1st respondent, as plaintiff, failed to prove her claim and accordingly dismissed it without seriously evaluatipeal before the learned Kadis of the court below on the following statements as her grounds of appeal thung the evidence.
Aggrieved by the decision of the trial court, Hajiya Biba Oauda lodged an aps:-
- that the respondent witnesses refused to answer her questions, 2. the trial Area Court Judge refused to believe her witnesses; and
- the Upper Area Court Judge did not investigate the case properly.
After listening to the grounds of appeal and the records of proceedings, the court below invited, as it were, a brother to the 1st respondent and suo motu made him the 2nd respondent who, according to Islamic law, can only inherit the emancipated slave, as a male benefactor, sponsor or donor.
I wish to state that the court below in suo mutu joining the 2nd respondent, Mallam Abubakar Sali, did not state under what law, rules or regulations they joined the 2nd respondent. It was not clear whether the Sharia Court of Appeal Law, 1960 as amended allowed it to so act. It may sound strange for an appeal court to invite somebody who was not a party at the trial court to be joined in the appeal without such requests coming from any of the parties. The true position will unfold itself anon.
Again before I go further, I want to state that both decisions of the trial court, and to some extent, that of court below vis-a- vis the supposed heir to the emancipated slave is correct in law. If the emancipated slave died, his properties shall be distributed among his male heirs. If the said freed-slave has no rightful heirs then his properties or estate shall revert to his emancipator (Benefactor). The emancipator (Muwiq) is referred to in Sharia as Malilal Ni ‘ima. A female heir of the freed-slave cannot inherit him unless and until if she herself is the one who emancipated him.
See the book “Uddatul Bahith, Ahkamil Tawarith”, by Abdul-aziz Nasir Arrashid p6. In other words a patroness may inherit only from someone she herself has freed from a child of such a person or from someone such a person freed in turn. See p201 especially p202 of the Risala of Abdullah ibn abi Zaid al-Qayrawani, an annotated translation by Joseph Kenny.
The proper position of the emancipated slave is that once he was freed his money/properties belong to him. The law is that “Iza U, tiqa Tabiahu Maluhu”, meaning that whenever a slave gained back his freedom he is considered the owner of his property but not his children. The law is this, that if a slave is emancipated he became the owner of his property of his money hut never the owner of his children. It was stated in this Arabic phrase -Innal Abda Iza Utiza tabiahu Maluhu Walam Yatbauhu Waladuhu.
Another important legal issue is that only male children of emancipated slave can inherit his estate. Where an emancipated slave left property his female heirs cannot inherit him, he can only be inherited by his male heirs. A female heir can only inherit where she became, mu, tiqa i.e. emancipator or patroness herself. See Ashalul madariki, a commentary on Irshadis salik by Abubakar Al-kashnawee Volume 3 p202-p256.
That being the case, the stance taken by the Sharia Court of Appeal vis-a-vis the Islamic law is quite unassailable. I therefore endorse same. See also Sirajus Salilk Vol.2 p288: and Al- Tahqiqatul Marbiyya Fil Mabahil Alfar-biyya by Fawzan p120.
My Lords the strange aspect of this appeal is that after stating and applying the correct principles of Sharia by the court below it then ordered a junior brother to the 1st respondent herein to be joined at appeal stage. Not only that, the 2nd respondent joined has not called any witness or witnesses in proof of his supposed claim. Nonetheless the court below, i.e. Sharia Court of Appeal. Adamawa State, appeared to enter judgment in his favour. I say this because when the 2nd respondent, Mallam Abubakar Sali. confirmed to that court that they allowed the 1st respondent to represent him, the court below announced that he is entitled to inherit the deceased Selbe Abubakar. That court held thus:-
“In view of all (sic) said above we declare that Abubakar Sali as the Dilly surviving male son of Sali should be the benefactor who is entitled to inherit Selbe as such we set aside the decision of the Yola Upper Area Court No. I accordingly, Abubakar Sali now take (sic)
The issue of inheritance of deceased Selbe To Furfore Upper Area court for distribution. Appeal is allowed.”
Aggrieved by the above decision, the appellant herein appealed to this court and filed a notice of appeal containing three grounds of appeal including an omnibus ground. There was no necessity for me to reproduce the grounds of appeal here. At the hearing of the case the appellant’s counsel merely adopted the appellant’s brief filed on 5/11/97. The respondent’s counsel did the same. Both counsel refrained from further expatiating on behalf of their respective clients. In the appellant’s brief of argument, the following two issues were formulated thus:-
- Whether the Shari a Court of Appeal ought not to have dismissed or struck out the appeal or case brought before it by the 1st respondent who was the sole plaintiff and at the trial Upper Area Court after reaching a conclusion that she had no right to inherit the property in Issue.
- Whether the Sharia Court of Appeal as an appellate court was right in substituting its own views for the view of the Upper Area Court No, I and in subsequently finding for the 2nd respondent based on the evidence called by the 1st respondent when the 2nd respondent was not a party at the trial court.
It is my candid view that the issues formulated by the respondent are more or less the same with those formulated by the appellant. I will, in considering this appeal, make use of those issues formulated by the appellant herein.
It is the contention of the learned counsel for the appellant on P3 of their brief, that once the Sharia Court of Appeal reached the conclusion that the 1st respondent (female heir) had no right to inherit the property in issue, it ought to have dismissed the case before it and should not have proceeded further. Learned counsel then submitted that since the 1st respondent was the sole plaintiff at the trial court and the Sharia Court of Appeal having found that she could not inherit the property of the deceased Selbe because she is a female, the Sharia Court of Appeal had no business going further in the case. It ought to have reached a conclusion that her appeal failed und should be dismissed. He further submitted that it was completely out of place for the Sharia Court of Appeal to start fishing for another plaintiff in order to create a cause of action, moreso when there is no such power under the Sharia Court Law or Rules and when none of the parties applied for anybody to be joined.
Learned counsel on the same issue argued that since none of the parties applied to have the 2nd respondent joined, it is their submission that it was not right for a strange fellow, who never took part or was made a party to bejoined at an appeal stage. This action took the appellant completely unawares and therefore submitted that the Sharia Court of Appeal entered the arena to the detriment of the appellant. In his response, the learned counsel to the respondent submitted that the Sharia Court of Appeal was right when it joined the 2nd respondent at appeal stage, gave judgment in his favour and ordered that he should take up the issue of inheritance before the Upper Area Court Furfore for distribution of estate of late Selbe Manya having found under the Sharia the 1st respondent being a female heir has no right to inherit the status of an emancipator.
Learned counsel again clarified the position by submitting further that PW1, PW2, PW4 and PW5 mentioned the names of the 2nd respondent, one Miss Ada as one of the children of the deceased and Habiba Sali as his widow. These pieces of evidence, according to the counsel, were unchallenged and it is always left to the court to act on the unchallenged evidence. He cited the case of Insurance Brokers of Nigeria v. Atlantic Textiles Manufacturing Company (1996) 8 NWLR (Pt.466) 316; (1996) 42 LRCN p1527 where it was held that:-
“…where material evidence given by a party to any proceedings was not challenged or rebutted by the opposite party who had the opportunity to do so, it is always open lo the court seised of the matter to act on such unchallenged evidence before it. See Isaac Omoregbe v. Daniel Lawani (1980) 3-4 S/C 108 at 117…”
The respondent’s counsel further contended that the joinder of the 2nd respondent by the court below was proper at that stage. He relied on the provisions of Order III rule 7(2) of the Sharia Court of Appeal Roles Cap. 122 Laws of Northern Nigeria 1960. also sections 10(2) and 14(c) of the Shari a Court of Appeal Law conferred powers on the Sharia Court or Appeal while exercising its jurisdiction in hearing appeal cases to administer the Native Courts Law and any other law affecting Native Courts which laws presently are the Area Courts Edict of 1968 and Civil Procedure Rules 1970. These procedural rules allowed the Sharia Court of Appeal to join any person whose presence is essential to a just decision of the matter in dispute after due notice is given to the affected parties. See Order 23 rule 3 of the Area Courts Rules 1970.
I recall that this type of powers are called power of “alteration of parties” where at any stage of proceedings the court can join a relevant person to a proceedings even though he was not one of the parties. The court can suo motu do that. What I am not sure of was whether or not the court below gave proper notice to the parties before taking that measure. Order 23 rule 3 provides:-
“The court may at any stage strike out the names of any parties improperly or unnecessarily joined, and may, after due notice given to the parties affected, add the names of parties whose presence is essential to a just decision of the matter in dispute, and on proof of such notice the parties so served, whether they shall have appeared or not, shall he bound by the proceedings in the action.”
It appears to me that the record of the court below provides an answer. It is clear that due notice was given to the parties before the 2nd respondent was joined, See p.13 lines 6-10 and lines 14-24 thereof and the fact that the court below adjourned the matter for that purpose.
There is no doubt that the 1st respondent could represent the 2nd respondent and others in court. See s. 20(2) of the Sharia Court of Appeal Law supra and section 28(2)(a) of the Area Court Edict No. I, 1968
The record of the court below did not reflect the objection of the appellant to the invitation and joinder being effected by the court below. I therefore agree with the contention of the respondents’ counsel that the appellant’s non-objection could be used against him – see Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148: (1996) 39 L.R.C.N. p1028 where Iguh J.S.C. has this to say:-
“in cases where evidence complained of is not by law and in all circumstances inadmissible, a party may by his own conduct at the trial be precluded from raising objection to such evidence on appeal.”
It is to be noted that in Islamic law the courts especially the appellate court were mandated to look into the whole gamut of a case and see where justice of the case lies irrespective of whatever technicalities that may be involved. Whether or not the issues were germane to the grounds of appeal. In other words, whether or not grounds of appeal raised the matter, whether there are issues on those points or not, that should not bother much. The courts cannot be restricted to those issues in doing justice to the case any time and at any stage provided there are enough materials upon which a just decision can be reached. It goes without saying that the procedure under Islamic law could be seen as peculiar when compared with the common law procedure. But as time goes on and when the principles of Islamic law and procedure are well known the wisdom thereof will be easily understood, for example the appellate courts are not, under Islamic law, restricted to the grounds or issues raised by the parties before them. The position, which is far from that of the common law, was tersely and compendiously stated thus:-
“Once a case is brought before a judge under the Islamic law and procedure, the court is not restricted to the grounds of appeal (if any) filed before it. The judge can without being called upon to do so, consider the relevant law and apply it. At the appellate stage the appellate court can rehear or retry the case in whole or in part.” See Sidi v. Sha’ aban (1992) 4 NWLR (Part233) 113 at 118 per Uthman Mohammed JCA as he then was.
Consistently with the above and also considering the provisions of section 6) of the Area Court Edict supra which the court below has (the power to administer when hearing appeal I hold that the court below cannot be wrong in ordering the joinder of the male heir of an emancipated slave.
On the second issue supra, there is no much to say. The issue concerns itself with the problem surrounding the position of Maulanniima the benefactor vis-‘a-vis the inheritance of the estate of an emancipated slave. Considering the number and quality of the required witnesses in proof in Islamic civil matters the upper Area Court did not fully evaluate the evidence before it. The court below acted correctly in taking over the evaluation of the evidence to a certain stage. Hada v. Malumfashi (1993) 7 SCNJ p506: (1993) 7 NWLR (Pt.303) 1, see also Anaeze v. Anyaso (1093) 13 L.R.C.N. p837: (1993) 5 NWLR (Pt.291) 1 per Wali JSC.
It is to be noted again that the court below merely allow the appeal but did not actually and in so many words granted the 2nd respondent the house in dispute.
It only stated that the 2nd respondent, being a male surviving heir of the deceased is entitled to inherit the deceased under the Islamic law and not the other daughters including the 1st respondent being a female heir. I commend here with due respect the industry, acumen and sagacity of the learned Kadis of the court below. They are really versatile. If not because of their legal prowess the claim at the trial court would have been without remedy.
My Lords, the position of the Islamic law where a female heir of a freed-slave who died is denied inheriting her deceased father may sound queer and curious but the fact remains that is the Islamic law. It is there not without wisdom. Even though there is paucity of decided authority on the issue and the relevant practical application of the said principle comes dilly-dally there is nonetheless a lot of sense and enlightenment inherent therein.
This appeal therefore lacks merit and is hereby dismissed. Judgment and orders of the Sharia court of Appeal Adamawa State delivered on the 25/3/97 are faultless and are hereby affirmed. No order as to costs. Appeal dismissed.
Other Citations: (1998)LCN/0358(CA)
