Jumare Maiwada Kofar Jatau Vs Inno Mohammed Mailafiya (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, JSC.

Inno Muhammadu Mailafiya, the respondent in this appeal, left Dirin Daji, a town which was formerly in Sokoto State (now in Kebbi State) and came to Zariya. Inno had come out in search of her father, Muhammadu Mailafiya, who left her when she was 9 years old and her mother many years ago and had not returned. On her arrival at Zariya, Inno was taken to the house of the appellant, at Kofar Jatau Quarters. It was alleged that the house belonged to the family of one Muhammadu Mailafiya Because of the number of courts which this case went through I will refer to the respondent as Inno for ease of reference.

Inno was taken to a woman whose junior brother was called Muhammadu Mailafiya. The woman told Inno that her junior brother left home 60 years ago and nobody had reported to have seen or heard of him. The woman was the mother of the appellant Inno told the woman that Muhammadu Mailafiya was her father and that she came to Zariya in order to trace his whereabouts. She was not sure whether he was alive or dead. Inno was then acked to describe Mailafiya’s distinctive and characteristic features. Inno’s description failed to tally with the features of the junior brother of appellant’s mother who had disappeared and had not been heard of for about 60 years. Inno left for Kaduna.

Eight months later, Inno sued the appellant before Zariya Area Court No.2 and claimed for the share which she said her father Mailafiya inherited from his father Husaini. Husaini was the father of both the appellant’s mother and Muhammadu Mailafiya. When Husaini died his estate was divided between his heirs. Now, since Inno is claiming to be a daughter to Mailafiya, the junior brother of appellant’s mother, she wants her father’s share from Hasaini’s estate to be given to her. The Area Court judge directed Inno to produce witnesses in proof of her assertion that she was a daughter to Muhammadu Mailafiya.

Inno called four witnesses but none was able to convince the Area Court Judge that Inno was a daughter to Muhammadu Mailafiya who left Zariya 60 years ago.

Dissatisfied with the judgment of the Area Court, Inno appealed to the Upper Area Court, Zariya In a slipshod judgment, with no evidence to support it, the Upper Area Court Judge allowed the appeal and declared that Inno was the daughter of Muhammadu Mailafiya. He also found, but again with no evidence to support it, that Muhammadu Mailafiya was Husaini’s son and Husaini was Abdullahi’s son. The Upper Area Court Judge thereafter ordered that Inno be given her father’s share of inheritance namely, a house and farm land situated at Auguwar Fatika, Kofar Jatau, Zariya City.

The appellant, Jumare Maiwada Kofar Jatau, appealed against the decision of the Upper Area Court to the Sharia Court of Appeal, Kaduna. The Sharia Court of Appeal found that the Upper Area Court had erred in introducing into the case issue of inheritance of a house and a farm and the family tree of Muhammadu Mailafiya when those matters were never raised by Inno at the trial court. The court agreed with counsel for the appellant that three of the four witnesses who testified for Inno had not given satisfactory evidence on the contention of Inno that her father was Muhammadu Mailafiya who disappeared after leaving Zariya 60 years ago. The Sharia Court of Appeal however, agreed with the Upper Area Court that PW4 who came from Gumi had established that Muhammadu Mailafiya died at Wasagu (now in Kebbi State). Therefore, the court referred to Mukhtasar Khalil, volume 2, page 299, and directed Inno to complement the evidence of her only one witness with an oath. After the oath had been administered to her the Sharia Court of Appeal dismissed the appeal.

Next, the appellant appealed to the Sharia Division of the Court of Appeal on 4 grounds of appeal. Learned counsel for the appellant, JB Daudu, SAN, raised two issues from those grounds, for the determination of the appeal. The two issues are as follows:

“1. Whether there was sufficient evidence on the printed record of proceedings upon which the Sharia Court of Appeal could have reached a decision that the respondent was the daughter of the missing person, Muhammadu Mailafiya?

2. What is the standard of proof where the estate of a missing person (Mafqud) is the subject matter of a claim by a person hitherto unknown to the missing persons family?”

The issues formulated by the learned counsel for the respondent were similar to the issues reproduced above. The Court of Appeal, however, instead of considering the appendix on the points raised in the issues, embarked on elucidation of several principles of Islamic law. Marry points not relevant to issues before the court were considered. At the end Okunola, JCA., who wrote the lead judgment, with which Coomassie and Tanko Muhamnuad, JCA., concurred, dismissed the appeal and made the following orders:

“1. That Inno is Muhamnadu Mailafiya’s daughter

2. That Muhammadu Mailafiya is Hussaini’s son, and
3. That Hussaini is Abduilahi’s son
4. That the respondent, Inno, be given her father’s share of inheritance, namely; a house and farmland situated and lying at Unguwan Fatika, Kofar Jatau, Zaria City.”+

Dissatisfied with the decision of the Court of Appeal the appellant finally came to this court on four grounds of appeal. The two issues formulated from the grounds of appeal by the learned counsel for the appellant were adopted by the learned counsel for the respondent in the respondent’s brief. The issues are:

“1. Whether the Court of Appeal was correct in its conclusion that there was sufficient evidence on the printed record upon which the Sharia Court of Appeal could have reached a decision that the respondent was the daughter of Muhammadu Mailafiya (A missing person) and that she was entitled to inherit his estate, which had become ripe for inheritance?

2. Whether the Court of Appeal was right in granting the respondent a judicial decree that the missing Muhammadu Mailafiya was dead and whether the court could grant reliefs not ought by the repondent ab initio?”

The cace of Inno before the trial court is that she is the daughter of one Muhammadu Mailafiya who left Kofar Jatau Quarters, Zariya, about 60 years ago. That the said Muhammadu Mailafiya had inherited an estate from his late father, Hussaini. That a declaration is sought from the court that Inno is entitled to inherit the estate. What Inno has to prove, therefore, is that she is the daughter of Muhammadu Mailafiya who left Zariya 60 years ago and secondly, she must establish that Muhammadu Mailafiya is dead or could be presumed dead. In Fathul Aliyil Malik Vol. 2 at page 190 the learned author says follows: