By Ibrahim Alhassan, Esq.
|Scale of justice|
“The Supreme Court can in exceptional circumstances review or vary its own judgment”
CHUKWUMA-ENEH J.S.C Famu v. Kassim (2013) 7 NWLR (Pt. 1255) 347
The facts of this case are not seriously in dispute between the contestants. The deceased, Alhaji Ramat and Hajiya Kwayisu were husband and wife living in the matrimonial residence provided by the husband. Apart from Hajiya Kwayisu, Alhaji Ramat had two other wives namely, Ya Adama and one other. They were both living with him in the same house. One night a gang of armed robbers attacked and broke into the residence of Alhaji Ramat causing serious injuries to Alhaji Ramat and one of his wives Hajiya Kwayisu, resulting in their death.
Following the death of Alhaji Ramat and Hajiya Kwayisu the guardians of Hajiya Kwayisu and the relations of Alhaji Ramat, in consultation with some Islamic scholars learned in sharia, shared the estate of Alhaji Ramat among his surviving heirs. They gave l/8th of the estate to the wives, Hajiya Kwayisu inclusive. Hajiya Kwayisu was allotted a house with six rooms. Alhaji Juddum the 1st defendant in this case was among the relations of Alhaji Ramat that witnessed the sharing of the estate. It was after the sharing that Alhaji Juddum denied the plaintiffs Alhaji Abba Abuna Goni and Goni Adam the share of Hajiya Kwayisu whom they claim to be their mother.
PART OF THE PLAINTIFFS’ CLAIM AT TRIAL UPPER AREA COURT.
“The house with six rooms was said to be my mother’s share but thereafter Alhaji Juddum denied us the house saying that my mother had predeceased her husband by death. We therefore disagreed to that. If he is claiming that my mother had predeceased her husband by death let him produce his witnesses and confirm to that effect before the court.”
In answer to the preceding statement by the plaintiff the 1st defendant replied
“I heard, she had preceded her husband by death and that was why we said she had no share.”
The trial Upper Area Court then proceeded as follows:-
“Court: Are you aware that the deceased’s relatives had given three houses as eighth portion of inheritance to the deceased’s wives?
Defendant answer: Yes, I know.
Court: Since the relatives of the deceased Alhaji Ramat and other members of the public had apportioned three houses as “thumun” [i. e. l/8th] to the three wives, what right do you have to prevent somebody her share’
Defendant Answer: This is left for the court to decide.
Court: Have you got witness (es) who could testify that she had preceded her husband by death?
Defendant answer: Yes, I have two witnesses.”
The defendant who had now the burden to prove that Hajiya Kwayisu predeceased Alhaji Ramat called Ya Adama Alhaji Abbas who was one of the two surviving wives of Alhaji Ramat, and Hajiya Hamra Shuwa, a neighbour’s wife. None of them testified in support of the defendant’s allegation.
1st Witness Ya Adama Alhaji Abbas testified as follows:
“I was together with my husband. When the robbers came to my husband ordered me to put my golds into the box and asked me not to go out. As for him on going out, they fell on him and beat him, when I went out I saw my rival and she was shot at her thigh. She called me and said that I should tie her thigh with her head-tie, I tied it for her and went to my husband’s place when I heard that he too was killed, that is all I know.”
The 2nd witness Hajiya Hamra Shuwa, stated thus in her evidence-
“When the robbers came to their house, I went out. I saw the thigh of Hajiya Alhaji Ramat’s wife was tied with a head-tie. I was taking care of her when I heard that my husband was beaten. From there I became confused. In view of that I cannot exactly say whether Hajiya or that Alhaji Ramat was first to die because it was the following day that I heard that Hajiya had died.”
The trial Upper Area Court after considering the evidence, stated:
“At this juncture the court told Alhaji Juddum that his two witnesses did not confirm his claim and that the deceased’s husband relatives had mentioned before this court that they had picked out three houses as the one eighth portion each of the house wives inheritance and that whether he has another witness he said he has none.”
The trial court then affirmed the settlement reached by the representatives of the deceased persons in which the house with six rooms was given to Hajiya Kwayisu as her share from l/8th of the estate of her deceased husband.
SHARIA COURT OF APPEAL
On appeal to the Sharia Court of Appeal, the appellant raised the issue, for the first time, that the 1st respondent’s mother and her husband died contemporaneously and that it was not possible to ascertain who predeceased the other. The Sharia Court of Appeal proceeded on the footing that since it was not established who preceded who by death, the 1st respondent’s mother had no right of succession to her husband’s estate. In the result, that court set aside the judgment of the trial Upper Area Court and ordered that that court “receive back one eighth portion of inheritance which it had given to Hajja Kwayisu and give it to the heirs of Alhaji Ramat.”
COURT OF APPEAL
The Respondents (Abba Abuna Goni and Goni Adam) appealed to the Court of Appeal, Jos Division, against the judgment and order of the Sharia Court of Appeal, Borno. The issue raised by the respondents was that the trial court was wrong in the procedure it adopted and that the Sharia Court of Appeal should have ordered a retrial. Ayoola JSC observed thus:
“It is to be noted that the respondents on their appeal to the Court of Appeal had abandoned the contention that the judgment of the trial Upper Area Court should be affirmed, and replace it with a contention that the proceedings in that court being tainted by procedural error, a re-hearing should be ordered. The procedural error alleged was that the respondents were denied a hearing. The present appellant argued in the Court of Appeal that the procedure adopted by the Upper Area Court was proper in that proceedings in such courts are inquisitorial and not adversarial. The Court of appeal had no difficulty in rejecting the contention, raised by the respondents, that the trial Upper Area Court adopted a wrong procedure in not calling on the respondents to give evidence. They were of the view that the Sharia Court of Appeal should have affirmed the judgment of the trial Court. They found it inconsequential that the respondents were not offered an opportunity to present their case. They further held that the Sharia Court of Appeal had no basis for arriving at the conclusion it did when the appellant had not proved his assertion.”
The Court of Appeal painstakingly considered the appeal and in its unanimous decision delivered by Tanko Muhammad JCA, allowed the appeal and concluded-
“In the circumstances therefore, I have no other alternative than to declare the decision of the Bomo State Sharia Court of Appeal a nullity and confirm the decision of the trial Upper Area Court. Position of the parties therefore, must be in line with this decision, revert to the status quo ante. The respondent has no right to keep on withholding the share of the appellants as distributed among the heirs by the prepositous relation as nothing has been established to rebut such a decision.”
The Appellant formulated four issues for determination to wit:
“Was the creation of missing link, videfailure to administer oath on the plaintiff/appellant the mistake of the trial Upper Area Court I
If the answer to the above is in the affirmative, is it then right to visit a party in a suit with such a mistake
Should this matter be remitted to the Sharia Court of Appeal for the missing link to be provided in order to judge in the plaintiffs favour?
If the answer equally is in the affirmative, was the Court of Appeal right in over-turning the decision of the Sharia Court of Appeal and affirming that of the trial Upper Area Court I, Maiduguri”
While Respondents raised the following issue in his brief-
“Whether the decision of the Court of Appeal, Jos Division restoring parties to status quo ante, was right in Islamic Sharia, regard being had to the appellant’s claim and special peculiarities of this case relating to the common belief of the parties to this case and justiciability of the appellant’s claim.”
However, the Supreme Court had suo moto raised and considered this issue: “Whether the Court of Appeal was right to restore the judgment of the trial Upper Area Court I, Maiduguri, regard being had to the evidence adduced by the appellant.”
RESOLUTION OF THE ISSUES
The Supreme Court of Nigeria held as follows:
The Court of Appeal wrongly declared the Sharia Court of Appeal judgment a nullity when it manifestly allowed the appeal. There is nothing to show that the Sharia Court of Appeal was incompetent when it heard the appeal. Its decision could be wrong but certainly not a nullity. If it were so, the proper order the Court of Appeal should have made would be for a fresh hearing of the appeal before a competent tribunal instead of allowing the appeal at the tail end of its judgment, and no such order for a fresh hearing was made.
Under the Sharia procedural law, it is not always necessary that a litigant who complains first before the court shall always be the plaintiff. It is the Judge, based on the dictates of the facts of the case, that decides who is to be the plaintiff. The Judge has to determine, from what is most reasonable and in conformity with the normal state of things, which of the two parties is to be cited as the defendant.[i]
The respondents’ complaint before the trial Upper Area Court is not that who between Alhaji Ramat and Hajiya Kwayisu predeceased the other but that the appellant denied the heirs of Hajiya Kwayisu the share from the estate of her deceased husband, to wit: a house consisting of six rooms which also formed part of l/8th of Alhaji Ramat’s estate given to his wives that survived him.
It was the appellant that introduced the issue that Hajiya Kwayisu predeceased Alhaji Ramat. Based on this new element introduced by the appellant the learned trial Judge, and rightly too in accordance with the Sharia Law, in my view asked him to prove the allegation. None of the two witnesses called by him gave evidence in his favour.
This case involve a claim in the share of the estate of Alhaji Ramat. It can be estimated in money’s worth. The appellant had failed to prove his claim by the evidence of two unimpeachable male witnesses or one unimpeachable witness with the appellant’s complimentary oath, or evidence of two or more unimpeachable female witnesses with his complimentary oath.[ii]
The Court of Appeal is therefore perfectly right when Tanko Mohammed JCA in the lead judgment said- “I am of the view that the procedure adopted by the trial Upper Area Court was the right one as it is trite that under Islamic Law, a Judge has the capacity and competence to determine the plaintiff in a given case notwithstanding which of the parties brought the case to the court.”
In Islamic Law or Sharia, where a person who is declared by the court to be the plaintiff fails to prove his case in a claim for money or which can be estimated in money’s worth, the defendant shall be called upon to take the oath rebutting the plaintiff s claim.[iii]
In the present case, the appellant has failed to substantiate his allegation as required by law; the respondents as heirs of Hajiya Kwayisu shall subscribe to the oath of rebuttal of the appellant’s claim. If they decline to do so, the appellant will be asked to take oath affirming his assertion. If both decline to take the oath, the court will dismiss the appellant’s claim and enforce the settlement reached by the parties.
See pages 34 and 36 of Ihkamul Ahkam [commentary on Tukhfal, particularly on page 36 where the procedural law is stated thus-
“If the defendant refuses to take the oath of rebuttal of plaintiffs claim] the plaintiff shall be asked to take oath of confirmation of his claim. Where both refuse to take the oath, the court shall dismiss the plaintiffs claim.
Where a Muslim dies, his heirs are permitted by law to appoint a person learned in Islamic law to share his estate among them according to such law, and if subsequently the matter is taken before a court of law, that court will enforce the sharing, provided it conforms with the law.[iv]
Where a plaintiff dies, his heirs are permitted by law to appoint a person learned in Islamic law to share his estate among them according to such law, and if subsequently the matter is taken before a court of law, that court will enforce the sharing, provided it conforms with the law.
The appeal fails and it is dismissed. The judgment and orders of the Court of Appeal is affirmed subject to the taking of oath of rebuttal by the respondents. N10,000.00 costs is awarded to the respondents against the appellant.
BRIEF EXAMINATION OF THE DECISION
It is obvious from the facts of the case as orally presented by the Plaintiffs/Respondents before the Borno Upper Area Court that the Respondents action was on claims of House presumed to be in possession of the 1st Defendant/Appellant. The said house which formed part of 1/8 of the Alhaji Ramat’s estate given to his wives that survived him including the Respondents’ mother (Hajiya Kwayisu/deceased), but the Appellant claimed that the Respondent’s mother predeceased her husband Alhaji Ramat.
Having highlighted the facts and holdings of the courts above, this paper is focused on the Islamic cardinal principle of adjudication and highlights some serious breaches of Islamic procedure law by the Courts (supra).
The death of both Alhaji Ramat and his Wife (the Respondents’ mother) was not in dispute. Also, the estate of Alhaji Ramat which was distributed to his heirs by the Islamic Scholars was not in dispute. Therefore, the crux of Plaintiffs/Respondents’ case as earlier stated is that the Appellant has denied them the share 1/8 allocated to their late Mother who survived her husband. Since it was established that the Respondents’ mother was wife of Alhaji Ramat and she survived him, then she cannot be excluded from his estate. The Court of Appeal in Muhammad v. Muhammad (2001) 6 NWLR (Pt. 708) 104 page 773 para.D held:
“Where a husband died, as in this case, the wife as widow will inherit one quarter of the estate of the deceased husband if he has no issue legitimate enough to be his heir. But if he has children she will be relegated and demoted to one-eighth”
The Respondents’ mother, having been in the ten categories of heirs under Islamic Law cannot be denied 1/8 fraction share[v] of her late Husband estate by the Appellant, except where there is doubt in the order of the time of death. Unfortunately for the Appellant, the present case has nothing to do with doubt in view of the fact that Alhaji Ramat Estate had already been distributed by the Islamic Scholar and his surviving three wives have gotten 1/8 shares from their husband estate.
THE CARDINAL PRINCIPLES OF ADJUDICATION UNDER ISLAMIC LAW[vi]
Al-Qady is the Islamic term for a judge. He is charge with the responsibility to enforce Islamic law. He should be intellectually alert, possess ability to conduct research, reason, segregate the truth from falsehood, be a man of integrity, patience, respectability and one who consults the learned persons.
Al-Maqdiy Bihi refers to the law upon which a court’s decision or verdict is based.
Al-Maqdih Fihi refers to the issues at stake or contention in litigation. No claim is considered valid unless it is exact, well defined and specific.
Al-Mudda’iy refers to a Complainant in a suit.
Al-Mudda’h Alaihim refers to a Respondent/Defendant in a suit.
Kafiyyah refers to the procedure followed to arrive at the decision. It is has to do with evidence/proof (Al-Bayyinah).
All these constitute Arkanul-Qadai, the cardinal principles of adjudication. Any decision delivered in the absent any of the above, according to Islamic Jurist is invalid. It is not the aim of this paper to declare decision of the Supreme Court invalid but to highlight some serious breaches of Islamic Procedure law by the Courts. Although this case was decided in 2000 i.e 20 years ago, the Supreme Court is commended for its highly intellectual application of law, wisdom, reasoning and good appreciation of the case before the Trial Upper Area Court.
HIGHLIGHT OF SOME BREACHES OF ISLAMIC PROCEDURE LAW
Unlike the Common law procedure where a claim filed by the Plaintiff against a Defendant is been determined by a Judge irrespective of its content/facts without changing the parties’ status. It does not follow in Islamic Law that he who goes to court to lodge a complaint is Al-Madda’iy (Plaintiff) while the person against whom complaint is lodged is automatically Al-Mudda’ay ‘Alaihi (defendant).[vii]
In Safeti v. Safeti  2 NWLR (Pt. 1017) 56 P.67, paras. B-D the Court of appeal held:
Under Islamic law dispensation, the response of a defendant to a plaintiff’s complaints may automatically make him become the plaintiff. By such new position, the defendant as plaintiff has the onus to prove his case. In the instant case, by the response of the appellants to the complaints of the respondents they had the onus to prove that the houses in their possession were given to them as gifts by their late father.
The Supreme Court in the case under review has confirmed this principle of Islamic law procedure when it held:
Under the Sharia procedural law, it is not always necessary that a litigant who complains first before the court shall always be the plaintiff. It is the Judge, based on the dictates of the facts of the case, that decides who is to be the plaintiff. The Judge has to determine, from what is most reasonable and in conformity with the normal state of things, which of the two parties is to be cited as the defendant. See Pp. 217 Paras. E-F; 221 Para. C
The Supreme Court also upheld the holding of the Court of Appeal Jos on the same position when it held: The Court of Appeal is therefore perfectly right when Tanko Mohammed JCA in the lead judgment said- “I am of the view that the procedure adopted by the trial Upper Area Court was the right one as it is trite that under Islamic Law, a Judge has the capacity and competence to determine the plaintiff in a given case notwithstanding which of the parties brought the case to the court.” P.218 G-H
The Supreme Court further held: “It was the appellant that introduced the issue that Hajiya Kwayisu predeceased Alhaji Ramat. Based on this new element introduced by the appellant the learned trial Judge, and rightly too in accordance with the Sharia Law, in my view asked him to prove the allegation. None of the two witnesses called by him gave evidence in his favour”. P.217 G-H
From the holdings of the courts above, it is clear that the response of the Appellant before the Trial Upper Area Court made him to be the Plaintiff who has onus to prove his claim. Conversely, one will be tempted to ask under what capacity the Appellant presented his claim before the Trial Upper Area Court? Does the Appellant have locus standi to present the claim before the court? Was the Appellant an heir of Alhaji Ramat or one of the heir who is entitled to 1/8 share for the 3 surviving wives? Or was he a representative of Ya Adama and Hajiya Shuwa and instituted the action on their behalf?
TRIAL UPPER AREA COURT: A careful perusal into the record of this case, it is apparent that the Appellant was not heir to Alhaji Ramat. It is not stated anywhere that the Appellant is entitled to 1/8 share of the deceased estate already distributed by Islamic scholar. Therefore, the Appellant have no locus standi to claim thus; “I heard, she had preceded her husband by death and that was why we said she had no share.”
Upon hearing the Appellant response, the Trial Upper Area Judge should have apply the Islamic principle of adjudication and procedure by directing the Appellant to address the court (by way of prove) that he has locus standi (the right) to prosecute the case and he will be the sole beneficiary when judgment is delivered in his favour. This would have solved the matter at the earlier stage without recourse to the Sharia Court of Appeal up to the Supreme Court of Nigeria. In Muhammad Haruna (2013) 1 SQLR (Pt. 3) 44, 66-61, the Court of Appeal explained: “It is the duty of the judge who is called upon distribute the estate of a deceased person to his heirs to determine and ascertain the following matters: (a) the death of the deceased; (b) the legitimate heir(s); and (c) the inheritable estate” See also the case of HAJAIG v. YUSUF (2020)4 NWLR (Pt. 1713) 164
In Juddu’s case, thought the trial upper area court was not called upon to distribute the estate of deceased person, the Appellant’s claim that the Respondents’ mother preceded her husband by death is enough reason for the trial court to ascertain the legitimate heir and the status/capacity of the Appellant in the case. In Soda v. Kuringa (1992) 8 NWLR (Pt. 261) 632 page 638, para. G. the court held:
The issue of locus standi is a fundamental issue that touches on the jurisdiction of the court.
Per MOHAMMED, J.C.A. at page 639, paras. A-C:
“It is a party’s right under Islamic Law to request for his share of inheritance and he can go to court and demand it even if the remaining heirs do not give their consent to the suit.[viii]
We submit respectfully, since the Appellant is not requesting his 1/8 share of inheritance as of right, hence, the failure to ascertain capacity or locus standi of the Appellant by Trial Upper Area Court constitutes serious breach of Sharia principle of adjudication and procedural law.
SHARIA COURT OF APPEAL BORNO: The Court after setting aside the Trial Upper Area Court judgment ordered that court to receive back one eighth portion of inheritance which it had given to Hajja Kwayisu and give it to the heirs of Alhaji Ramat. This position with due respect to the Court was wrong. Reason been that under the Sharia law of inheritance and doctrine of pre-emption (shuf’ah), the 1/8 share could not go to heirs other than the remaining two surviving widows (Ya Adama and Hajiya Shuwa).
My Lord Wali JSC in the case of Alkamawa v. Bello & Other (1998) LPELR- 424 (SC) defined pre-emption (shuf’ah) as the right by which a co-owner in an immovable property may redeem from a stranger, in consideration of compensating him, that part of the property which has been sold to him by another of the co-owners.
Another point to consider is the fact that the Sharia Court of Appeal can rehear the appeal before it and order the Appellant to prove his locus standi and his entitlement to 1/8 share of the inheritance. This procedure has judicial approval in the case of Nasir v. Haruna (2002) 2 NWLR (Pt. 750)240, pp.249-250, paras. H-C the Court of Appeal held:
“..thus, unlike the position under the common law system, the appellant courts are not, under Islamic Law, restricted to the grounds or issues raised by the parties before them. At the Appellate stage, the appeal court can re-hear or re-try the case in whole or in part” See also Sidi v. Sha’aban (1992) 4 NWLR (Part. 233) page. 117-118 paras. G-A,
Worthy of note is the fact that the Appellant case before the Sharia Court of Appeal was different from the one before the Upper Area Court. The Sharia Court of Appeal should have utilize this opportunity to raise the issue of locus standi/legitimate heir. That the failure of Sharia Court of Appeal to exercise this discretion in line with the Sharia law and procedure had occasioned to miscarriage of justice in its decision. Also the Sharia Court went further to grant a relief not asked for by the Appellant, the relief of which was not supported by evidence.
SUPREME COURT OF NIGERIA: The Supreme in its judgment held: The appeal fails and it is dismissed. The judgment and orders of the Court of Appeal is affirmed subject to the taking of oath of rebuttal by the respondents. N10,000.00 costs is awarded to the respondents against the appellant.
The Apex Court decision in respect to taking of Oath of rebuttal by the Respondents has no judicial legal backing under Islamic Law. It is trite under Islamic law procedure that it is the responsibility of one who makes an assertion to establish the claim, while oath is imposed only on whoever denies liability. This is called Yamin Munkar i.e the Oath to deny liability.
It is submitted with respect that reason behind subjecting the Respondents to taking of Oath of rebuttal is as a result of Appellant’s failure to prove his claim as required by Islamic law of judicial proof. The Appellant only called upon two female witnesses and close his case without taking Oath to complete his evidence. But the question is can the Supreme Court on its own subscribe oath on the Respondents who denies the Appellant claim? The answer is No.
A judge shall not, on his own, subscribe oath on a defendant who denies a claim against him, unless such oath is requested by the plaintiff, when inferred from the circumstances. It is further argue that a defendant can only take Oath of rebuttal where there is a proper Plaintiff before a court. The Appellant in this case is not a proper party (Plaintiff) and lack the locus standi to institute this case or even request the Respondents to take Oath of rebuttal. This is strictly issue of jurisdiction which the Supreme Court should have for the first time raised it suo moto and further direct the Parties to address the court.
A court that is not sure who is the Plaintiff and who is the defendant, cannot escape miscarriage of justice in its decision. The author observed with dismay the serious breaches of Islamic law procedure in resolution of this case by the court. The issue of jurisdiction is the backbone of every judicial proceeding, likewise judicial precedent.
Although the Trial Upper Area Court has affirmed the settlement reached by the representative of the deceased person, this was done without any judicial proof by the Respondents. On the other hand, the Appellant’s claim is a different claim entirely from that of the Respondents. Even if the Appellant lack locus standi for his claim, the Respondents has burden to prove their claim. The Court of Appeal Jos has not cure this error instead affirmed the decision of the Trial Upper Area Court. The Appellant was not a litigant, but a trespasser and his attitude constitute a clear action of al-gaasib (usurpation), which might be punishable under Islamic law on one hand and section 342 Penal Code Law of Borno State.
Furthermore, the court should have made legal consultations from some reputable, intellectual and learned Islamic scholars in the areas of inheritance and the cardinal principle of Islamic Adjudication. The errors would have been averted.
The Supreme Court can correct these errors to avoid relying on same in the name of judicial precedent. Reliance is on the letter of Caliph ‘Umar (may God be pleased with him) to Musa ‘Al-‘Ashari when the latter was a judge. It reads
To settle between warring Muslims is in order except a reconciliation that makes what is lawful unlawful and makes what is unlawful lawful. Do not allow a decision you took in the past and you reflected on it and found better judgment later, enslave you not to go back to the truth. Truth is eternal.
In STANBIC IBTC BANK PLC V. LONG TERM GLOBAL CAPITAL LTD & ANOR  2 NWLR (Pt. 1707) 1 pp. 17-18
The Supreme Court acknowledged that the apex Court has the inherent power to set aside its own judgment in very stringent and uncommon circumstances. Relying on a host of judicial authorities, Abba Aji, JSC identified the circumstances under which the Supreme Court may set aside its own judgment as follows:
Where there is a clerical mistake in the judgment or order;
Where there is an error arising from accidental slip or omission;
Where there arises the necessity for carrying out its own meaning and to make its intention plain;
Where any of the parties obtained judgment by fraud or deceit;
Where such decision is a nullity;
Where it is obvious that the court was misled into giving the decision under a wrong belief that the parties consented to it;
When judgment was given without jurisdiction;
Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication;
Where the writ or application was not served on the other party, or there is denial of fair hearing;
Where the decision/judgment is contrary to public policy and will perpetuate injustice.
[i] See Ihkamul-Ahkam [Commentary on Tuhfatulul – Hukkam] page 8; Ruxton on Maliki Law, pages 281-282 and Jawahirul-Iklil vol. II [Commentary on Mukhtasar-el-Khalill page 225.
[ii] See page 240 vol. II, Jawahirul- Ikil [commentary on Mukhtasar-el Khalil] where the author stated the law as follows:”au sabqiyyatihi” ai mautu ahadil fariqaini awiz zaujaini alamautil akhar, fa tuthbitus sabqiyyati bi adlin wamra’ataini au ahadihima ma’a yaminin.” Meaning: or who preceded by death: that is who died first between the two, or who between the two spouses died first; in such a situation the claim as to who preceded by death shall be established by the evidence of one male unimpeachable witness plus that of two female unimpeachable witnesses or by the evidence of one of the two [a male witness or two female witnesses] with the claimant’s complimentary oath.” See also pages 35 – 36 Ihkamul-Ahkam [commentary on Tukhfalul-Hukkam]; suit No. CA/K/81/84: Abdullahi Mogaji Mafolaku v. Usman Akanbi Ita Alamu (1961-1989) Sharia Law Reports of Nigeria vol. 1105 at 107; page 188 Hashiyatud Dasuki vol. 4 [commentary on Mukhlasar el-Khalil] and page 203 Khirshi vol. 4 [commentary on Mukhtasar el-Khalil].
[iii] See Ihkamul-Ahkam [Commentary on Tukhfatul-Hukkam] page 9 where the law is stated thus- “The defendant shall subscribe to oath of rebuttal when the plaintiff fails to prove his complaint by evidence of witnesses.” See also Ruxton on Maliki Law paragraph 1600, page 302 where it is stated- “1600. If the plaintiff cannot furnish complete judicial proof, the defendant will make oath in order to remain in possession.”
[iv] See Ashalul Madarik Fi Irshadis Salik vol. 3 page 209 wherein the law is thus stated – “It is permitted to appoint an arbitrator and to enforce what he decides.”
[v] Q: 4:11-12. A wife or wives are entitled to fraction 1/8 of a husband in the presence of any child or any grandchild, but ¼ in the absence of any child or any grandchild.
[vi] The Principle of Muslim Family Law in Nigeria by M.A. Ambali page 123. See also section 261 and 276 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended)
[vii] A distinguished Jurist Ibn Musayyah was quoted by Sheikh Ahmad Ibn Ghunaim Ibn Abi Zaid Al-Qirawani Al-Maliky, when he quoted thus: “Anybody who has the knowledge to distinguish the Plaintiff from the defendant has discovered the gate to just decision” see Ahmad Ghuniam An-Nafawawiy Al-Malikiy (1374H/1955)
[viii] See Hamza v. Yusuf (2006) 10 NWLR (Pt. 988) 238
Written By Ibrahim Alhassan, Esq. a private Legal practitioner in Abuja-FCT
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