Alhaji Ahmadu Babale V. Amina Aminu Abdulkadir (1993)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
In the Upper Area Court, Zaria, the appellant herein was the defendant in a suit instituted by the respondent in which she stated her claim as follows: –
“I am sueing (sic) Alhaji Amadu because I want him to give me back my father’s farmlands. They are situated at Shika, Jushi, U/Kaya and also here at Kwarbai.”
The trial Upper Area Court, in an apparent endeavour to determine the exact nature of her claim said; –
“You are co-inheritors with him or he has his own separate one ”
Answer:
“They have sold their own farmlands, these ones belong to my father only. My father is Abdulkadir Dan Wambai, he left the farmlands in the care of Alhaji Babale (Father of the defendant Alhaji Ahmadu)”
In his reply to the claim the defendant stated as follows:-
“I do not agree with what she said, because these farmlands she is talking about belongs (sic) to my father (Alhaji Babale) who inherited same from his father (Dallatu Muhammadu). I lived with my father for 51 years, I never heard anybody saying he has a share of the farmlands. He was using these farmlands until after his death, and about 4 years later, Amina went to Yusufu (the ward head of U/Kaya) to whom I left the care of the farmlands to, she said he should come and beg me to cut a portion for her in the name of goodwill, (said we the children of Babale are seven in number, six males with one female until I consult them before I do the appropriate thing. Everybody was still awaiting the reply, then came a summons. That is all I know.”
Both parties gave evidence and called a number of witnesses in support of their respective claims. As the conclusion of the trial, after reviewing the evidence adduced by the parties, the trial Upper Area Court observed as follows:-
“What this Court has observed in this case is that in respect of these farmlands none of the parties has called any witness whose evidence can fully be relied on, all the witnesses are saying that they do not know the history of the farmlands. None of the parties has shown to this Court that the farmlands belong to him or her alone. There are witnesses to confirm that both Dangaladima and Dalhatu owned the farmlands and were collecting (Galla) during their lifetime, and that they had a relationship with each other, they were brothers.
For this reason, what will happen in this case is they will all be given an Oath to make, everyone swear that the farmlands belong to him/her alone. If all of them should swear, then it will be divided into two for them and if all of them refuse the Oath, it will still be divided for the two of them. If one swear and the other refuses then the whole of the farmlands will go to the person who swore. If it is confirmed that the farmlands are for joint inheritance, then they will all be shared equally including the ones Alhaji Babale sold out and the one he gave out free of charge (They will be counted as part of his share). The farmland at Shika which the plaintiff said that it belongs to Fatu, the court will not make any order in respect of it. Alhaji Ahmadu can sue her or the inheritor since he said it was Babale who gave it to her on loan.
The one which they built a house on near the prison which they said they filled a pit with sand before building, the Court will not make order on it also, if Amina likes she can sue the person who built on it or the inheritor of the house in a separate suit since they said it was a pit and no one can say who is the rightful owner and who to inherit. The farmlands that the Government seized and built school and the ones sold out to people by Alhaji Babale will not be touched because no one knows how much they gave Babale on them. In respect of the farmlands with Dankauye which the plaintiff said he divided into two and showed only one part, since Alhaji Ahmadu said he knows nothing about them only the one shown by Dankauye, if the plaintiff wants she can investigate further and sue the people who are in possession of the farmland. Since the plaintiff is not here in person, the case is adjourned to Friday for taking of the Oath. Case adjourned to 27/2/87.”
The record shows that on the 27/2/87, the plaintiff, Hajiya Amina was present in Court but the defendant was absent. The trial court then asked if the plaintiff was prepared” to swear that the farmlands belong to you alone, you inherited it from your father, Alhaji Ahmadu has no share out of it” She replied that she would not take any oath since all the farmlands belong to her father, and on that note, the trial court decreed as follows:-
“It is hereby ordered that all the farmlands in dispute are for joint inheritance between Amina and Alhaji Ahmadu, the ones sold by Alhaji Babale and Alhaji Ahmadu sold out will be counted among their share.”
Being dissatisfied with the decision of the trial Upper Area Court, the appellant appealed to the High Court of Kaduna State on a number of grounds.
When the appeal came up for hearing in the High Court, that Court declined to entertain the appeal. It held that it had no jurisdiction to do so as the matter in dispute between the parties raised an issue under Islamic Law. The Court then ruled as follows: “We have read the record and it appears to us to be a case of inheritance under Islamic Law and therefore outside the jurisdiction of this court. It is a matter within the exclusive jurisdiction of the Sharia Court of Appeal by virtue of the provisions of section 242(1) (c) of the Constitution.”
Mr. Daudu, learned counsel for the appellant made a submission to the court to the effect that the dispute between the parties had nothing to do with inheritance. He referred to a portion of the proceedings where the Upper Area Court had held that the parties’ fathers were brothers.
The High Court was not persuaded by the submissions made on behalf of the defendant. The Court decided that the issue between the parties related to “inheritance under Islamic Law,” which was a matter within the exclusive jurisdiction of the Sharia Court of Appeal “and subject to the written consent of the Honourable Grand Kadi as provided by section 78 of the High Court Law, the appeal shall be transferred to that Court.”
Again being dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal, Kaduna Division which Court, in a unanimous decision delivered on 10th July, 1989 dismissed the appellant’s appeal and affirmed the ruling of the High Court. This appeal is from that decision.
Now I have already set out earlier in this judgment the finding of the Upper Area Court that all the farmlands in dispute “are for just inheritance.” This was the finding that was upheld by both the High Court and the Court of Appeal: But having carefully read the record of the proceedings in the Upper Area Court, I am unable to find any scrap of evidence to support that finding. The plaintiff’s claim, as Mr. Daudu correctly submitted, had no bearing or relevance to a suit of inheritance under Islamic Law. Furthermore, the defendant or appellant when asked by the trial Upper Area Court before the conclusion of the hearing if he had anything further to say, said:
“What I have to say is that there is nowhere we jointly inherit with Amina.”
The duty of a trial court is to resolve the dispute between the parties as presented by them, As was clearly pointed out by this Court in Adebanjo v. Brown (1990)3 NWLR. (Pt. 141) 661, it is not the business of a trial Court to make out a case for a party as the trial Upper Area Court would appear to have done in this case. In my view the Upper Area Court was in error to have come to the conclusion that the dispute between the parties related to an issue of joint inheritance under Islamic personal Law when the evidence before the Court did not support such a conclusion. On this point alone, the decision of the Court of Appeal affirming that of the High Court cannot be allowed to stand. Consequently the appeal succeeds and it is accordingly allowed.
The decisions of both the Court of Appeal and the High Court are hereby set aside, and the appellant’s appeal against the judgment of the Upper Area Court, Zaria delivered on 27/2/87 is hereby remitted to the High Court of Kaduna State to be heard on its merit by a differently constituted panel. Costs assessed at N1,000.00 are awarded to the appellant.
SC.128/1990
