Ibrahim Hamza V. Lawan and Yusuf (2006)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
On the 15th day of April, 1993, the appellant herein, as plaintiff at the Wudil Area Court (trial court), told the trial court that he was sueing one Lawan and other legal heirs of Hamza (plaintiff’s father), seeking the court to divide the estate left behind by Hamza who died 13 months ago. Hamza left behind one house situated at Italiya Hausawa. He left behind as heirs three sons: Ibrahim (the plaintiff), Lawan (1st defendant) and Yusuf; five daughters who are: Hansatu, Tsaiba, Rakiya, Sahura and Halima. He also left behind two wives: Binta and A’1. One Alasan was another son to Hamza but he predeceased Hamza.
In response to the claim, 1st respondent herein as 1st defendant at the trial court stated that before his death, Hamza divided the said house into portions and gave to the appellant, one Yusuf, one Alasan and himself (1st defendant). These were all male children of the deceased Hamza. Each of them built up his portion and took occupation thereof. What remained of the house was where Hamza (the deceased) lived till his death. The trial court sought for clarification from the plaintiff in view of the response by the 1st defendant whether he was claiming the whole house or only the area where the deceased (Hamza) lived till his death. The plaintiff replied:
“The said whole house up to the place where he has stated he has given because he has not given to anyone.”
As there was dispute over the identity of the subject matter, the trial court moved its sitting to the locus inquo. The court directed all legal heirs to attend the locus inquo. The trial court was at the locus inquo on 27/4/93 it explained its mission to the heirs. The children and wife of Alasan who predeceased Hamza were also present at the locus inquo. The trial court put all the heirs including heirs to Alasan, what Lawan, 1st defendant stated. Each of them responded as follows:
Yusuf: What Lawan stated is true.
Hansatu: Whether he has given to them or not, I have forgiven them. I wish the court to allow me to go and I am not seeking anything about the said house.
Rakiya: What Lawan stated, whether it is true or not, I have forgiven, I am not seeking anything about the subject matter of the house.
Halima: I wanted the distribution in order to give my share.
Tsaiba: The court saw her in the house suffering from mental sickness and could not take her response.
Representative of A’i: What the court has pleased. I do not know whether they were given or not.
Binta: I have known that he has divided the said house for them.
Let me hasten to observe at this juncture that from the Record of Appeal before this Court, the above listed persons including the plaintiff and defendant were the surviving heirs to late Hamza.
The trial court however, in its wisdom went ahead to entertain responses to 1st defendant’s claim of gift of portions of land by Hamza to his male children from the heirs of late Alasan (a son who predeceased Hamza) other heirs to late Hamza. Below are their responses:-
Murtala (son to Alasan): The said house the whole of it has not belonged (sic) to Hamza. It belongs (sic) to my father Alasan. He has bought the plot with his own money.
They arrived and made a building they have settle inside it even with Hamza.
The trial court asked the plaintiff and the remaining legal heirs as follows:
“Have you heard what the said Murtala has stated what have you (to) state?
Lawan: (1st defendant): It is not true the house belong to Hamza.
Yusuf’: (2nd defendant): It is not true the said house belong to Hamza.
Ibrahim: (the plaintiff): What Murtala has stated it is like that the plot as a whole belong to his father Alasan.
Musa (sons to Alasan): What Murtala stated is true.
Bashir (sons to Alasan): What Murtala stated is true.
Talatuwa (widow to Alasan): What Murtala has stated is true.
*Sahura (daughter to Hamza): I have stated that I have forgiven.
*Representative of All (widow to Hamza): What Murtala has stated is not true. The said house belongs to Hamza.
*Halima (daughter to Hamza): The said house belong to Hamza
*Rakiya (daughter to Hamza): Myself I have stated that I have forgiven.
*Hansatu (daughter to Hanna): I have stated I have forgiven.
*Binta (widow to Hamza): The said house belong to Hamza.
The trial court then proceeded to ask 1st defendant, now as counter claimant to produce his witnesses who knew that the house in dispute belonged to Hamza and that he had given it to him. 1st defendant/counter claimant stated that they had witnesses who knew that the house belonged to Hamza but they did not have witnesses as to gift made to them by Hamza. The counter-claimant was in court with his three witnesses on 18/5/93. But instead of going ahead with taking of evidence of the counter-claimant, the trial court took a dramatic decision by making the following statement:
“Court to defendant Lawan: Since the court has sat for its session and you are stating that the house belongs to Hamza and the said Murtala are stating that the house belongs to Alasan before your witnesses have appeared before the court, the court wanted to hear how the said Hamza got the said house?” (italics for emphasis and I shall revisit this issue in due course).
The defendant/counter claimant told the trial court how their deceased father (Hamza) got the land. Thereafter, the trial court took evidence from 3 witnesses called by the 1st defendant/counter-claimant. The court rejected their evidence.
The trial court now turned to Murtala (son of Alasan) to establish his claim that the house in dispute was owned by Alasan. The trial court rejected the evidence of the 3 witnesses called by Murtala.
On 16-6-93, there was a report to the court by one Ibrahim that Murtala had been searched for but could not be traced and he had got missing.
After evaluating all the evidence called by the “plaintiff’ and “defendant”, the trial court explained to the parties of the following procedure:-
“Court to plaintiff and defendant since the house is in your possession as a whole the children of Hamza and his wife they have to swear base on their claim. And the children of Alasan and his wives they have to swear about their claim if you have sworn all of you the house will be divided among you the legal heirs of Alasan half and the legal heir of Hamza half. If you refused to swear all of you it will be divided equally among the legal heirs of Alasan half and the legal heirs of Hamza half, and whoever is refused to swear his share is reverted to the person whom has sworn.”
Some of the parties subscribed to the oath, others refused (page 34 of the record). As of Murtala who disappeared and never re-surfaced, the trial court deemed him as present but refused to swear. As of Bashir, who was a minor he was treated as such and his share put in trust and to be given to him when he is mature and subject to his subscribing to the oath. As of Tsaiba who was found to be insane and with no hope of recovery, her own share was taken out from the estate. As of Ibrahim, the original plaintiff, the trial court, stated that he was held liable by his admission as an adult that the house did not belong to Hamza his father but to Alasan. Thus, at the end of it all, the trial court divided the estate to the following children of Hamza who subscribedto the oath namely: Lawan, Tsaiba, Yusufu and Halima.
Bashir, who was a minor and son to Alasan also had his share kept pending his maturity and subscribing to the oath.
The original plaintiff Ibrahim was dissatisfied with the trial court’s decision. He appealed to the Sharia Court of Appeal, Kano.
His grounds of appeal at the lower court were as follows:
“1. I do not agree with the judgment of Lower Area Court because the court has separated me from getting the share of my father.
- The court has not given to me my share while all of us we (sic) are full blood brothers, e.g. having the same father and mother with them.
- The court has not done a complete investigation and study in the said case.”
The lower court took submissions of the parties and in its decision of 21/4/1994, the appeal was dismissed and the decision of the trial court affirmed.
Dissatisfied further, the appellant appealed to this court on six grounds of appeal.
It is pertinent to note that the parties from trial court to this court did not employ the services of counsel.
The appellant drafted and filed his grounds of appeal by himself.
He did not file any brief of argument. All the same, this court is a court of substantial justice. I shall consider his “grounds of appeal” and formulate issues in relation thereto in order to do substantial justice. The grounds read as follows:
- The said house belong to our father and the origin of it our father is the one who bought it when he bought the said house after contractual transaction our father told us myself and my senior brother Alasan. He has stated to us that there is no money with him but among you if there is someone who has money to pay the house. Due to that the two he goats of Alasan have been taken and paid the house money. He has stated that if he has got money he will pay him his money e.g. the said Alasan.
- We have built the said house up to the death of Alasan then our father died and our father has not pay him the money but the said Alasan has died and left behind there children namely:- Murtala, Musa, and Bashir and house wife Talatuwa as well as his mother Binta and his father Hamza who is our father.
- Ibrahim, I am seeking the inheritance of my father Hamza from the House of Alasan because we are brothers with Alasan and our parents have inherited him.
- I do not agree with the judgment of Wudil Area Court and Sharia Court of Appeal because the case is not investigated well while even though the court has to leave me with my brother to share equal right of inheritance but the court denied to provide me with my share of inheritance which my deceased father Hamza has inherited my brother Alasan and father inherit him and I have inherited my father.
- The lower court Wudil Area Court and Sharia Court of Appeal, Kano are insisting that I have made confessional statement. That the house never belongs to our father Hamza but it belong to our brother Alasan. So that I am seeking the inheritance of my father which if my father has inherited my brother Alasan, I have to inherit him since he has died and left me behind with my brothers.
- My brothers who are stating that the house belong to our father namely Lawan, Yusufu and Halima when the said house has been bought the said Lawan is not in town and we do not know where he is living. Yusufu is a young boy and he is not in the place. When the transaction took place because our father has not arrived with the Halima has not known any thing about the subject matter but she is acting on what Lawan has stated to her.”
Thus, no issues have been formulated by the appellant. The well established practice is that where a party has formulated no issue, or even where issues were formulated by the parties but in the court’s view such issues will not lead to a proper determination of the appeal, this court is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame it’s own or reframe the ones formulated by the parties.
The bottom line however is that the issues framed, whether by the parties or by the court, must at all time be related to the grounds of appeal filed. See: Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104)373 at p. 433; Momodu v. Momodu (1991) 1 NWLR (Pt.169) 608 at p. 621; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at p. 157; John Bankole & Ors. v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt.211) 653 at p. 537; Sha v. Kwan (2000) 5 SCNJ 101 at page 115, (2000) 8 NWLR (Pt. 670) 685.
From the appellant’s grounds of appeal quoted above, the following issues are relevant:
“1. Whether it was correct for the trial court to exclude the appellant from the estate of his late father. (Ground 6).
- Whether it was correct for the trial court to exclude the appellant from inheriting his father’s share from the estate of late Alasan. (Grounds 2, 3, 4).
- Whether the lower court was correct in affirming the decision of the trial court. (Ground 5).”
Ground one of the grounds of appeal appears more of rhetoric than a ground of appeal. It is hereby struck out as it cannot find an issue to support it. See: Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corporation (1999) 2 SCNJ, 57, (1999) 2 NWLR (Pt.591) 333.
It appears to me that there were three claims in this matter as contained in the record of appeal. These are:
(a) The substantive claim put forward by the original plaintiff/appellant i.e. Ibrahim Gware, estate of late Hamza Gware;
(b) A counter claim put forward by one of the defendants of late Hamza’s estate i.e. Lawan, who was the 1st defendant and,
(c) A claim put forward by one of the heirs of Alasan, Murtala.
My observation is that these claims and counter claim were taken simultaneously by the trial court. Although it is not procedurally wrong under sharia to take such claims together, it would have been much easier for the trial court if they were taken separately. This would have obviated unnecessary duplications and confusions encountered on the record.
On the 1st issue, let me say from the outset that Islamic Law of inheritance has made some pre-distribution conditions to be satisfied by a claimant of inheritance before an estate can be distributed. These are:
(1) That death of the praepositus has occurred de facto or de jure
(2) That the claimant is a bonafide legal heir 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.
See: Yibo Yari v. Mikaila (1986) 5 NWLR (Pt.46) at 1064; Al-Ouran, Chp. 4 Vol. 11; Mawahibul Khallaq Vol. 2 Page 13; Ihkamul Ahkami Page 331. Jawahirul Ikil Vol. 2 page 327.
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 (Nikah/Zawai)
(c) emancipation (Itaq/Walaa)
If a person is making a claim for inheritance against a deceased through any other ground than the above, he can hardly succeed.
In the 1st claim by Ibrahim Gware, the trial court found that he was able to establish his linkage and that of his other co-heirs through blood tie and marriage. By the rules of Islamic Law of evidence, there would be no more burden on any of Hamza’s heir to establish his/her relationship with him as the one established by the plaintiff in this situation suffices. It is provided in a book: Mueenul Hukkami Fi Ma Yataraddadu Baina Alkhasmaini Minai Ahkami, page 230, as follows:-
Translation:
“Where a man dies and leaves surviving heirs. If one of them claims his father’s death and makes a claim against a house which is in another’s possession whereas the house was owned by his father which he left behind to him and other relations such as so and so. If the person in possession denies the claim and the claimant establishes with two witnesses the death of his father, the number of the heirs and that the said house was owned by his father who died and the estate devolved on the heirs and none of the heirs was present in court except the claimant, the Judge will admit the evidence and will confer title of the house on the deceased and will proceed to distribute the house accordingly giving the claimant his due share … But as for shares to other heirs, these will be left in the hands of the claimant so that any time anyone of them surfaces, he shall take his own share from him. (The Judge) shall not compel the repeat of evidence to establish that the estate was owned by his father.”
It is clear from the trial court’s record that the reason why the plaintiff was excluded from Hamza’s (his father’s) inheritance was because of his admission. The trial court stated, among other things, the following:
“About Ibrahim who is the original plaintiff who has came (sic) back and stated that the said house is not belong (sic) to Hamza his father, the court has done it judgment (sic) and it has agreed with the confessional statement which he has done. Since he is matured and sane together with his own consent. As it was stated in the book of Mukhtasar …”
This was affirmed by the lower court: I agree with the two lower courts. The position of Sharia is that, where a sane adult person, free from any interdiction, makes an admission in a civil suit, he is bound by his admission. The Prophet (PBUH) is reported to have said:
Translation:
Admission/confession is a better form of evidence than witnesses.
The authority cited by the trial court in this respect is also quite apposite here:
Translation:
An adult free of interdiction is held liable for his admission.
See: Khalil, Jawahir al-lklil Vo1.2 p.132,
The plaintiff made admission that the house was not owned by his father.
It belonged to Alasan. As far as the plaintiff was concerned, his late father’s death could not transfer anything from the house occupied by his late father as the late father could not transfer what he did not have.
It has been stated in the Jawahir Al-lklil (supra) page 212:
Translation:
(Gift) is invalid if made by a minor, an insane … nor is it valid when made with that which does not belong to one.
Thus, if the appellant would accept any portion of the deceased’s property which he (appellant) admitted did not belong to the deceased, he would be accepting an invalid gift. This, sharia does not permit. Accordingly, I decide issue No.1 against the appellant.
On the 2nd issue, it is clear from the record of appeal that there was evidence that Alasan predeceased Hamza (their father). It is not in any dispute as well that Hamza was the father of Alasan. The trial court made a finding that Alasan died and left behind the following:-
Murtala (son), Musa (son), Bashir (son) and Talatuwa (widow). When the estate left behind by Alasan was shared, no indication was made as to what Hamza, his father (who survived him) got. This is in conflict with sharia principles. It is trite law that a father or mother of a deceased person cannot be excluded by any heir. He has a right to inherit 1/6 of the estate as he co-existed with the deceased’s children and widow. The holy Quran provides:
“For parents, a six share of the inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters), the mother has a sixth.
(The distribution in all cases is) after the payment of legacies he may have bequeathed or debts.”
(See: Al Quran: 4:11).
I am inclined to agree with the appellant that he was unjustifiably precluded from inheriting that portion of the estate inherited by Hamza (his father) from Alasan’s property. It appears the trial court omitted this point completely. But Hamza (as a father), had a right (a share) to take from Alasan’s property irrespective of whether it is big or small (Al Quran: 4:7). This indeed was a grave omission which needs to be redressed.
On the 3rd issue, the lower court ought to have thoroughly gone through the division of the (two) estates effected by the trial court among the legally entitled heirs to both Hamza and Alasan. This, of course, is part of the supervisory and appellate jurisdiction of the lower court which she can hardly shark away.
On the issue of Zhul-yadd, i.e. a person in possession, I observed earlier on that the trial courts record (P.29) where, after the court made a finding on possession by the children of Alasan where the latter got the land into his hands. I think it is procedurally wrong. The settled practice in Sharia is that where a person is in possession, he is never asked how he came about his possession. It is provided in the Tabsiratu
Al-Hukkami as follows:
Translation:
The person in possession should not be asked to explain how does the thing in his possession come into his hands. The claim of the claimant is voided in any event.
See Tabsiratu Al-Hukkami Fi Usulil Aqdhiyati Wa Manahigil Ahkami, vol.2 page 93.
In the final analysis, I allow this appeal in part. I order that the lower court to direct another Upper Sharia Court to re-distribute the estate of Alasan among his legal heirs including any of his parents who survived him. The estate given to the father shall then be distributed to Hamza’s heirs including the appellant. I make no order as to costs.
Other Citations: (2006)LCN/1912(CA)
