(2018) LPELR-45446(CA)

Transcription

1 SESSEDA v. SESSEDA CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO MUHAMMADU UMAR SESSEDA UMARU NAHARI SESSEDA ON FRIDAY, 13TH JULY, 2018 Suit No: CA/S/181S/2017 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ISLAMIC LAW AND PROCEDURE - ESTATE OF A MUSLIM: How to share the estate of a muslim under islamic law "... From the foregoing four grounds, the Appellant distilled the following twin issues for the determination. 1. Whether the Court below was right when it affirmed the decision of the trial Court which was unjustifiable under Islamic? (Distilled from grounds 2&4). 2. Whether the Court below was right when it affirmed the decision of the trial Court which was not based on any competent claim (Distilled from ground 1). Ground 3 from which no issue was distilled has been abandoned. It is accordingly discountenanced. The two issues raised for determination are very similar and would rather be treated simultaneously. The learned counsel for the Appellant A. A. Bagudu, Esq argued, on issue one, that The Upper Shari'a Court Gwandu heard 3 witnesses brought by the Respondent/Plaintiff who have all testified contrary to the claim of the Plaintiff/Respondent still, the Court delivered its judgment ordering the division of the farm land in to two between the Appellant and the Respondent and relying on a purported settlement between the parties. The testimonies of the Respondent's witnesses were totally ignored by the trial Court.(See pages 2-3 of the Record of Appeal). Apart from those three witnesses, the Respondent did not bring any other witness. However, in his wisdom the trial Upper Shari'a Court judge held as follows: "Today 20/3/2002, the Court resumed its sitting for the continuation of hearing the case and both the plaintiff and the defendant told the Court that they have made a compromise, because they are of the same mother the same father, that the farm will be divided into two between them and each to take half and for that there is nothing Court can do apart to endorse the reconciliation because it does not contravene the principles of Islamic law... therefore, I Adamu Ibrahim G/Kure, Upper Shari'a Court Judge of this Court confirm this compromise from today23/10/2002 and relied on the above ground." It was argued for the Appellant that from the above finding of the trial Court that, the basis of the decision was the purported compromise (sulhu), when in fact there was nowhere in the record of the lower trial Court showing that, the parties have agreed to settle. In a situation of this nature, the Court would record among the parties how the issue of settlement came about and ask the other party whether it is true that they have settled or whether he agreed with the settlement, not just for the Court to make such an awful and baseless declaration. It is an established principle of Islamic law that, a settlement based upon a compromise is lawful according to all Muslim jurists, but that does not mean, under any circumstance, that it could be baselessly imputed by the trial Court. See the case of ALHAJI ISA v. ESTATE OF LATE ALHAJI ABDULMUMINU (2007) 3 S.L.R PART IV PAGE 162 AT where it was held that; "a settlement based upon a compromise is lawful according to all Muslim jurists..." The Respondent's claim before the trial Court reads as follows: "I Umaru do hereby sue this man called Muh'd Kiruwa. We are sibling i.e. the same mother and same father and... our mother died and left a farm and I asked him for my share and he stated is the one who established the farm, for that I sued him before Court for the Court to divide the farm and each of us to take his share and that is all my statement." (See page 1 of the Record of Appeal) From the claim of the Respondent before the trial Court, he was seeking for the distribution of the estate of his mother. The Respondent also claimed that he and the Appellant are siblings. Under "Islamic law, a Court saddled with the responsibility of distribution of estate of a deceased person must call for the following evidence: a. The death of the deceased person. b. The heirs and estate left by the deceased c. Liabilities if any left by the deceased. The position of the Islamic law on this is that it is mandatory for Court to assemble all the heirs of a deceased Muslim in Court in respect of distribution of the estate of the deceased. It is clearly stated in Bahaja Tuhfa Vol. 1 page 51 that; "A judge shall not listen to a claim of a litigant in respect of the estate of a dead person, until he confirmed his death and invite his heirs." In this case, the lower Court did not advert its mind to that fact, but simply affirmed the unfounded decision of the trial Court that shared the disputed farm equally between the parties. It was submitted for the Appellant that, in line with the above authorities and the record of appeal before this Court, the Shari'a Court of Appeal Argungu, Kebbi State was wrong when it affirmed the said baseless decision. The Court was urged to resolve both issues in favour of the Appellant. It is pertinent that judgment cannot be placed on vacuum in utter disregard of the evidence adduced in Court by the Respondent that woefully failed to establish his claim. Therefore, it was wrong for the Court to suo motu invent settlement that never was and base its judgment on such false settlement. The trial Court acted on a self-created settlement (sulhu) that has not been reflected in the Court's record and apparently came from nowhere other perhaps the blues and bereft of respect for the basic tenets of Islamic Law principles. The lower Court (Sharia Court of Appeal of Kebbi State) should therefore have set aside the judgment of the Upper Area Court Gwandu as baseless and also pronounced contrary to the evidence adduced before the trial Court. Judgment may only be affirmed if it is correctly made and based on the facts of the case and the evidence adduced at the trial. In the instant case there was no evidence of any agreement, compromise (sulhu) between the parties. If there is any such compromise it has to be affirmed by both parties in court. There is nothing on record to show that there was any settlement (sulhu) between the parties. One wonders where the learned trial Upper judge got the 'compromise' (sulhu) on which he placed his judgment in utter disregard of the evidence adduced at the trial. It follows therefore that the lower Court wrongly affirmed the baseless decision of the trial Upper Shari'a Court Gwandu. It further follows that such judgment of the lower Court in liable to be upturned and without any hesitation both issues for determination are hereby resolved in favour of the Appellant."Per MUKHTAR, J.C.A. (Pp. 4-10, Paras. E- B) - read in context

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4 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Shari'a Court of Appeal Kebbi State, holden at Argungu Judicial Division in Appeal No. SCA/KBS/GD/29/2003 delivered on the 4th day of August The Respondent commenced the action as the plaintiff at the trial Upper Shari a Court Gwandu, where he sued the Appellant as defendant in an action for recovery of his mother's farm which he claimed that the defendant/appellant is in possession of, as part of his deceased mother's estate. The Appellant/defendant on the other hand claimed to be the owner of the farm land, and he also claimed he was the original founder of the land. The trial Upper Shari a Court Gwandu summoned the Appellant/Defendant who appeared in the Court and denied the Respondent/plaintiff s claim, asserting to be the original founder of the farm through the authority of the Village Head. (See pages 1, 2, 5& 6 of the Record of Appeal) After hearing the respective parties, the trial Upper Shari a Court Gwandu entered judgment in favour of the 1

5 Respondent/Plaintiff on the sole ground that the parties have settled between themselves. The Appellant was not satisfied with that decision and therefore appealed to the Court below which affirmed the decision of the trial Court. The Appellant was still not satisfied with the said decision, he therefore with the leave of this Court granted on the 26th day of October 2017 appealed to this Court by filing a Notice of Appeal on the following four grounds: GROUND 1 The Court below (Sharia Court of Appeal, Kebbi State) erred in law when it affirmed the decision of the trial Upper Shari a Court that was reached without competent claim before the Court. PARTICULARS a. The claimant did not state the location and the boundaries of the farm he was claiming from the Defendant. b. It is a condition precedent for every claim of a land (farmland inclusive) against a defendant, the claimant must state the location and boundaries of the farmland for the Court to assume jurisdiction. GROUND 2 The Court below erred in law, when it affirmed the decision of the trial Court which was reached per in curium. 2

6 PARTICULARS OF ERROR a. All the witnesses of the Plaintiff have testified against the Plaintiff's claim. b. All the witnesses have confirmed that the Appellant was the one who initiated the farm land, after an allocation of a bush by the village head. c. The learned trial judge of the Upper Shari a Court-was wrong when he claimed that parties have settled the matter between them when there was no evidence of such compromise. GROUND 3 The Court below (Shari a Court of Appeal, Kebbi State) erred in law when it delivered its judgment contrary to the grounds of Appeal. PARTICULARS 1. Whereas the Court below ignored the grounds of appeal as formulated by the Appellant, then bedeviled itself into the retrial of the suit with a different ground. 2. That even though a Court below can under certain circumstances raise and decide an issue, it must give an opportunity to the parties to address it on those issues as formulated. 3. The Appellant has consistently denied having any compromise with-the Respondent but still the Court below 3

7 went ahead to ignore his grounds of appeal and affirmed the decision of the trial Court. GROUND 4 The decision of the Hon. Kadis of the Lower Court was perverse, unreasonable and cannot be justified by any weight of evidence adduced before the Upper Shari a Court Gwandu. PARTICULARS OF ERROR i. The decision of the Court below which affirm the judgment of the trial Upper Shari a Court was not supported by any evidence. ii. In fact, all the witnesses called by the Appellant have supported the Appellant's case and have disputed the Respondent's' claim before the trial Court. iii. That the trial Court ought to have invited the Appellant to produce his witnesses if it felt that it could not rely on the testimony of the Respondent/Plaintiff witnesses. From the foregoing four grounds, the Appellant distilled the following twin issues for the determination. 1. Whether the Court below was right when it affirmed the decision of the trial Court which was unjustifiable under Islamic? (Distilled from grounds 2&4). 2. Whether the Court below was right when it 4

8 affirmed the decision of the trial Court which was not based on any competent claim (Distilled from ground 1). Ground 3 from which no issue was distilled has been abandoned. It is accordingly discountenanced. The two issues raised for determination are very similar and would rather be treated simultaneously. The learned counsel for the Appellant A. A. Bagudu, Esq argued, on issue one, that The Upper Shari a Court Gwandu heard 3 witnesses brought by the Respondent/Plaintiff who have all testified contrary to the claim of the Plaintiff/Respondent still, the Court delivered its judgment ordering the division of the farm land in to two between the Appellant and the Respondent and relying on a purported settlement between the parties. The testimonies of the Respondent s witnesses were totally ignored by the trial Court.(See pages 2-3 of the Record of Appeal). Apart from those three witnesses, the Respondent did not bring any other witness. However, in his wisdom the trial Upper Shari a Court judge held as follows: "Today 20/3/2002, the Court resumed its sitting for the continuation of hearing the case and both the plaintiff and the defendant told the Court 5

9 that they have made a compromise, because they are of the same mother the same father, that the farm will be divided into two between them and each to take half and for that there is nothing Court can do apart to endorse the reconciliation because it does not contravene the principles of Islamic law therefore, I Adamu Ibrahim G/Kure, Upper Shari a Court Judge of this Court confirm this compromise from today23/10/2002 and relied on the above ground." It was argued for the Appellant that from the above finding of the trial Court that, the basis of the decision was the purported compromise (sulhu), when in fact there was nowhere in the record of the lower trial Court showing that, the parties have agreed to settle. In a situation of this nature, the Court would record among the parties how the issue of settlement came about and ask the other party whether it is true that they have settled or whether he agreed with the settlement, not just for the Court to make such an awful and baseless declaration. It is an established principle of Islamic law that, a settlement based upon a compromise is lawful according 6

10 to all Muslim jurists, but that does not mean, under any circumstance, that it could be baselessly imputed by the trial Court. See the case of ALHAJI ISA v. ESTATE OF LATE ALHAJI ABDULMUMINU (2007) 3 S.L.R PART IV PAGE 162 AT where it was held that; "a settlement based upon a compromise is lawful according to all Muslim jurists " The Respondent s claim before the trial Court reads as follows: "I Umaru do hereby sue this man called Muh'd Kiruwa. We are sibling i.e. the same mother and same father and our mother died and left a farm and I asked him for my share and he stated is the one who established the farm, for that I sued him before Court for the Court to divide the farm and each of us to take his share and that is all my statement." (See page 1 of the Record of Appeal) From the claim of the Respondent before the trial Court, he was seeking for the distribution of the estate of his mother. The Respondent also claimed that he and the Appellant are siblings. Under "Islamic law, a Court saddled with the responsibility of distribution of estate of a deceased person must call for the following evidence: 7

11 a. The death of the deceased person. b. The heirs and estate left by the deceased c. Liabilities if any left by the deceased. The position of the Islamic law on this is that it is mandatory for Court to assemble all the heirs of a deceased Muslim in Court in respect of distribution of the estate of the deceased. It is clearly stated in Bahaja Tuhfa Vol. 1 page 51 that; "A judge shall not listen to a claim of a litigant in respect of the estate of a dead person, until he confirmed his death and invite his heirs. In this case, the lower Court did not advert its mind to that fact, but simply affirmed the unfounded decision of the trial Court that shared the disputed farm equally between the parties. It was submitted for the Appellant that, in line with the above authorities and the record of appeal before this Court, the Shari'a Court of Appeal Argungu, Kebbi State was wrong when it affirmed the said baseless decision. The Court was urged to resolve both issues in favour of the Appellant. It is pertinent that judgment cannot be placed on vacuum in utter disregard of the evidence adduced in Court by the 8

12 Respondent that woefully failed to establish his claim. Therefore, it was wrong for the Court to suo motu invent settlement that never was and base its judgment on such false settlement. The trial Court acted on a self-created settlement (sulhu) that has not been reflected in the Court s record and apparently came from nowhere other perhaps the blues and bereft of respect for the basic tenets of Islamic Law principles. The lower Court (Sharia Court of Appeal of Kebbi State) should therefore have set aside the judgment of the Upper Area Court Gwandu as baseless and also pronounced contrary to the evidence adduced before the trial Court. Judgment may only be affirmed if it is correctly made and based on the facts of the case and the evidence adduced at the trial. In the instant case there was no evidence of any agreement, compromise (sulhu) between the parties. If there is any such compromise it has to be affirmed by both parties in court. There is nothing on record to show that there was any settlement (sulhu) between the parties. One wonders where the learned trial Upper judge got the compromise (sulhu) on which he placed his judgment 9

13 in utter disregard of the evidence adduced at the trial. It follows therefore that the lower Court wrongly affirmed the baseless decision of the trial Upper Shari a Court Gwandu. It further follows that such judgment of the lower Court in liable to be upturned and without any hesitation both issues for determination are hereby resolved in favour of the Appellant. The appeal succeeds and is hereby allowed. Consequently, the judgment of the lower Court delivered on the 4th day of August 2003 in Appeal No. SCA/KBS/GD/29/2003 is hereby set aside. Furthermore, the Respondent s case at the trial Court being bereft of supporting evidence ought to have been dismissed by the lower Court. Having failed to dismiss the Respondent s unproven claim. It is further ordered that the claim before the trial Upper Area Court Gwandu Court be and is hereby dismissed. In view of the consanguinity relationship between the parties. it is considered inappropriate to make order as to costs. 10

14 MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the judgment of my learned brother, Hussein Mukhtar, JCA. After having carefully considered the judgment, I am satisfied that the lower Court was in error in wrongly affirming the decision of the trial Court. The appeal therefore succeeds and same is accordingly allowed. FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of the Court below just delivered and I am in agreement with the reasoning and conclusions reached that the appeal has merit and that it is according allowed. I subscribe to all other consequential orders made thereto. 11

15 Appearances: A. A. Bagudu, Esq. For Appellant(s) The Respondent was duly served on 10/05/2018. For Respondent(s)