KWARI v. KWARI
CITATION: (2017) LPELR-43177(CA)
In the Court of AppealIn the Kaduna Judicial Division
Holden at Kaduna
ON FRIDAY, 12TH MAY, 2017Suit No: CA/K/595/S/2016
Before Their Lordships:
IBRAHIM MOHAMMED MUSA SAULAWA Justice, Court of AppealMASSOUD ABDULRAHMAN OREDOLA Justice, Court of AppealRIDWAN MAIWADA ABDULLAHI Justice, Court of Appeal
BetweenMAGAJI HODI KWARI - Appellant(s)
AndHARUNA KWARI - Respondent(s)
RATIO DECIDENDI
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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
(Delivering the Leading Judgment): The present appeal
is consequent upon the judgment of the Jigawa State Sharia
Court of Appeal delivered on December 8, 2015 in appeal
No. SCA/JG/CVA/19/2015. By the said judgment, the Court
below affirmed with amendment the decision of the Upper
Sharia Court, holden at Dutse in Suit No. CV/183/2014 and
delivered on 10/09/2014 thereby conferring joint ownership
of the farmland in dispute on the heirs of Duwale and
Garba.
Dissatisfied with the said judgment, the Appellant filed the
appeal which is predicated upon two grounds.
BACKGROUND FACTS
On 14/4/2014, the Respondent instituted the said suit
before the trial Upper Sharia Court, holden at Dutse,
Jigawa State, thereby seeking the distribution of his
mother's inheritance. On 17/4/2014, when the matter came
up for hearing, the Respondent informed the trial Court,
thus:
I am claiming my mother's share named Duwale of
four (4) farmlands and one house at Kwari, which are
in Magaji custody. My mother had a relation with
dependants father, they are the same father and
mother. Twelve [12]
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days ago, Magaji and his brother have claimed for
distribution of our father's farm they exclude me from
the distribution, the persons whose will distribute the
said inheritance have refused to do so, because I was
excluded from the distribution, because they knew
that the farmland... belongs to us and they leave.
Later Magaji and his brother called junior brother to
their father (uncle) named Ubala and he distributed it
three [3] excluded me and my relatives, that is why I
sue before this Court to collect same from them.
The Respondent equally told the Court that his mother
[Duwale] died ten years before then. He named the heirs
as: (1) Haruna (2) Aminu (3)Haruna (4) Asabe (5) Hadiza
(6) Hauwa and (7) Usaini. He also described the locations
and boundaries of the farms in dispute.
However, on 24/4/2014, the Respondent informed the trial
Court thus:
Magaji's father [Garba] has distributed two farms to
my mother and himself, he took two portion and she
also took one, the remaining are two farms and one
house which are yet to be distributed until the death
of Garba and even now it yet to be distributed.
Therefore, now I am claiming two farms and one
house as estate of my mother; Duwale, from Magaji a
son of Garba.
On 08/5/2014, a total of three witnesses testified regarding
relationship and death in the persons of (1) Adamu
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Isalu 99yrs old, PW1; (2) Yakubu Hassan, 70yrs old, PW2;
and Sale Abdu, 90yrs old, PW3. The two farms and a house
were inspected. The Respondent equally called a total of
four witnesses in the persons of (1) Alh. Hassan Haruna,
55yrs old, PW1; (2) Murtala Isah, 45yrs old, PW2; (3)
Abdurrazak Muhd, 55yrs old, PW3; and Jibrin Musa, 50yrs
old, PW4.
On the other hand, the Appellant called two witnesses, in
the persons of Haladu Ismaila, 45yrs old, DW1.; and
Alhassan Musa, 56 years old, DW2 and Musa Ali, 90yrs old,
DW3.
At the conclusion of the trial, the parties addressed the trial
Court and the matter was adjourned on 09/9/14 for [final]
judgment. On 10/09/2014, the trial Court delivered the
vexed judgment to the following extensive conclusive
effect:
The witnesses of dependent backed the claim of the
plaintiff and the heir Duwale. And the Court hold that
the witnesses of plaintiff supercede the defendant
once, and it was convinced that the distribution of
Dogo, inheritance of house and two farms took place
which are in Magaji's custody and his brothers affirm
that this house and farms which were mentioned, it
boundaries which are
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located in Kwari are belongs to Dogo father to Duwale
and Garba, and seize it from Magaji to distribute it to
the heirs of Dogo i.e. Garba and Duwale as from today
it becomes an inheritance relying on witnesses and
the provision contained in IRSHAD DUSSALIL page
398….
Therefore, the Court decided to distribute the Dogo’s
inheritance to Duwale and Garba they will distribute
this house and farms cost N3,940,000 (Three million,
nine hundred & forty thousand naira) the house or its
value will be divided with two farms or its values into
3, Garba should take 2 and, Duwale should take the
other one; relying on the provision of Holy Quran sura
4 [Nisai] that the Garba share will be divided equally
to his heirs; i.e. 3 male, while Duwale share will be
distributed to her heirs which are 3 male and
3 female therefore; male has 2 portion while female
will have one (1) base on the provision supra above.
The Court also rely on two witnesses and the
provision supra above.
Then the following day (11/9/2014), the trial Court
proceeded to distribute the house and two farms in dispute
thus:
1. Duwale's share of house and farms
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which has the value of N3,940,000.00 which will be
divided into 3:1 portion to Duwale which equivalent to
N1,313,333.33 (One million, three hundred and
thirteen thousand, three hundred and thirty three
naira thirty three kobo). And her share will be in any
farm which declare as a Dogo's inheritance even from
Garba portion except Kan Jigawa farm the remaining
two portion of this inheritance now belongs to Garba
which has the value of N2,626,666.00 (Two million,
six hundred and twenty-six hundred and sixty six
naira only).
Having been dissatisfied with the aforementioned decision
of the trial Upper Sharia Court, Dutse, the Appellant
appealed to the Sharia Court of Appeal, Jigawa State.
Whereupon, the Court below in a considered judgment
came to the conclusive decision thus:
Upon the studying of the record of the lower Court;
Upper Sharia Court, Dutse, we apprehended it well,
and also considered the grounds of appeal before this
Court…
In our sought (sic) this contradicted the justice
because justice means putting things in right
position. Therefore, there is no justice in this
distribution because the judge decided to
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distribute 2 farms and 1 house but he discharged one
farm from the 2 farms which he decided upon
whereas he said early the distribution should be three
(3)….
Upon these grounds so far, we apprehended that this
judgment on distribution of Dogo's inheritance to his
two children [Garba; father to dependent and Duwale;
mother to plaintiff] into three (3) one to Garba family
and two (2) to the Duwale's family.
We affirm this decision and some amendment, the
amendment is 'Kan Jigawa' farm it to be distributed
and we rely on Order 9 of SCA LAWS CAP S15 2017 as
amended.
We allow the appeal.
This 8th day of December, 2013.
Not unnaturally, the Appellant was dissatisfied with the
said judgment of the Court. The notice of appeal dated
30/12/15, is predicated upon two grounds. By the said
grounds of appeal, the Appellant urged upon this Court to
set aside the whole decision of the Sharia Court of Appeal
delivered on the 8th day of December, 2015 for want of
justice.
On 22/02/2017, when the appeal came up for hearing at
Kano Special Appeal Session, the Appellant adopted the
brief thereof deemed properly filed on
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25/01/2017 and urged upon the Court to allow the appeal.
At page 3 of the said brief, a sole issue has been raised for
determination, viz:
1. Whether learned justice [sic] of the Sharia Court of
Appeal, Dutse, are right when they affirm [sic] the
judgment of the Upper Sharia Court, Dutse, [Ground
One and Two].
In the main, it was submitted by the Appellant that the
Respondent claimed the inheritance of his mother, Duwale,
which she jointly inherited from their late father, Dogo.
Further submitted, that the Respondent also claimed that
the property was distributed between the Appellant, his
junior brother and their uncle, known as Ubale.
It was contended by the Appellant, that it was wrong for a
Court to entertain a matter without summoning the
remaining parties. See IHKAMUL AHKAM, the commentary
on TUHFA-TUL HUKKAM by Sheikh Muhammad Yusuf
Alkafy @ 15.
Further contended, that it was wrong for the lower Court to
base its proceedings and decision over the inheritance of
the Respondent and not that of Dogo. At page 56 of the
Record, the lower Court decided to distribute Dogo's
inheritance to the Respondent's mother (Duwale) and the
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Appellant's father (Garba).
Referring to page 41 of the Record, it was argued that the
evidence of the plaintiff's witness, to the effect that the
land in dispute belonged to Dogo from whom the Appellant
inherited same, did not synchronize the statement of claim.
Thus, such a testimony ought to be rejected. See AL
FIQHUL ISLAMI, WA ADILLATIHI, VOL. 8 @ 6000.
On the whole, the Court has been urged upon to allow the
appeal, and set aside the two judgments of the trial Upper
Sharia Court and the Sharia Court of Appeal. Alternatively,
the Court is urged to remit the case to any Upper Sharia
Court for retrial.
On the part thereof, the Respondent did not file any brief of
argument on the said 22/02/17, when the appeal came up
for hearing, the Respondent appeared in person. He
informed the Court that he relied on the Record of appeal,
and accordingly urged upon the Court to dispense justice.
Having critically, albeit dispassionately, considered the
nature and circumstances surrounding the appeal, the
submission of the Appellant contained in the brief thereof
vis-a-vis the record of appeal, as a whole, I am of the
considered view,
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that it would be most appropriate to distil two separate
issues from the two grounds of the notice of appeal, viz:
1. Whether or not the Sharia Court of Appeal, Jigawa
State was right when it failed to summon the
remaining heirs of the deceased.
2. Whether or not the said Sharia Court of Appeal,
Jigawa State had erred in law when it failed to reject
the testimony of the plaintiff’s witness No.1.
ISSUE NO. 1.
The first issue raises the vexed question of whether or not
the Court below had erred in law when it failed to summon
the remaining heirs of the deceased Person. The first issue
is predicated upon ground one of the Appellant's notice of
appeal, contained at page 74 of the Record, viz:
Ground One:
1. The lower Court erred in law when it failed to
summon the remaining.
Particulars of Error
a. The lower Court refused to summon the remaining
heirs
b. The respondent’s action at the trial Court was
rooted to inheritance
In the main, the argument of the Appellant is to the effect
that it was wrong for the lower Court to have failed to
summon the remaining heirs of the deceased.
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And that the failure to invite "the entire heirs precluded
the Court from understanding the nature and the face
on which the claim should be based”.
Instructively, the claim of the Respondent [plaintiff] was for
the distribution of the inheritance of his deceased mother
[Duwale] i.e. four farmlands and one house allegedly in the
custody of Magaji [the Appellant]. The Respondent
mentioned the heirs of Duwale as [1] Haruna [2] Aminu [3]
Asabe [4] Hadiza [5] Hauwa and [6] Usaini. According to
the Respondent, the Appellant's late father [Garba] was of
the same parents with Duwale. And that the late Garba's
heirs were the Appellant, Usman and Ado. On 14/4/14, all
the plaintiffs were in Court with the exception of their
brother Aminu who was said to be living in Lebanon.
The Respondent called three witnesses in the persons of
Adamu Isah, 99 years, Yakubu Hassan, 70 years, Sale Abdu,
90 years who testified on the death of Duwale and the heirs
thereof. See pages 31- 36 of the record.. In addition to the
above three witnesses on death and the heirs of the
deceased, the Respondent equally presented four more
witnesses in the persons of Alh.
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Hassan Haruna, 35yrs old, Pw1, Murtala Isah, 35yrs old,
Pw2, Abdurrazak Muhd, 55yrs old, pw3 and Jibrin Musa,
50yrs old., pw4, respectively. See pages 40 - 45 of the
Record.
The testimony of the Pw7, Alh. Hassan Haruna, is to the
effect that he knew Duwale and Dogo, whom he said were
deceased. He told the Court that Dogo left behind four
farms at Raba, Diddibri, Gawo and Kanjigawa. He said the
four farms were not distributed among the heirs of Dogo
and they are in the custody of the Respondent Ladiya and
Adamu.
The Pw2 Murtala Isah, said he did not know Dogo, so his
evidence was dispensed with by the trial Court. The Pw3,
Abdurrazak Muhd testified that he knew the late Dogo and
the four farms left behind by him. He described the
locations and boundaries of the four farms. He told the
Court that the four farms had not been distributed. The
Pw4 testified that he knew the late Dogo and the four farms
left behind by him. He did not however, know whether the
four farms had been distributed to Dogo's heirs.
On the part thereof, the Respondent called three witnesses
in the persons of Haladu Ismaila, 45yrs old, DW1, Alhassan
Musa, 56
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years old, Dw2 and Musa Ali, 90 years old, Dw3,
respectively.
The DW1, Haladu Ismaila, informed the trial Court that he
neither knew Dogo nor whether the lands in dispute had
been distributed to the heirs. The DW2, Alh. Hassan Musa,
said he knew Dogo and the four farms left behind by him.
He equally testified that he knew and was actually present
when the two farms were distributed among Abubakar and
Duwale.
In the course of the testimony thereof, the Pw1, Alh.
Hassan Haruna, had informed the trial Court inter alia, that
Dogo-
“Left behind four (4) farms, (1) Raba (2) Diddibi (3)
Gawa and (4) Kanjigazaa.”
The Pw1 equally testified, to the effect that the farms in
dispute had not been distributed among Dogo’s heirs, and
that:
"They are in the custody of Magaji (Appellant), Ladiya
and Adamu.”
The Pw1 equally stated, that he saw the Appellant’s
grandfather (Dogo) cultivating the said farms, which were
later inherited by the Appellant's father. The trial Court
then threw these questions to the PW1 (and defendants):
q. Do you know how these farms met the magaji's
father?
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Ans.
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He inherited it.
Court: to the defendant 1 - 3 - do you have an
objection or question?
Ans. Magaji stated that these farms were distributed
and Haruna's mother got it [sic] share.
Ans. Ladiya no objection.
Ans. Adamu stated no objection.
See pages 41 - 42 of the Record.
In my considered view, having been in custody of the farms
in dispute, Magaji [Appellant], Ladiya and Adamu, [the
original defendants] were the proper and necessary parties
to the instant suit.
Ironically, however, the Appellant has alluded to the fact
that-
The respondent also claimed that the property was
distributed between the appellant, his junior brother
and their uncle known as Ubale.
My lords, in a situation like this, it is wrong of a Court
to entertain a matter without summoning the
remaining parties. This will give the Court a light to
know where and how to proceed.
See page 3 paragraph 4.1, of the Appellant's brief.
Undoubtedly, against the backdrop of the above highlight,
to the effect that the persons said to have been in actual
custody of the property in dispute- Magaji [the Appellant],
Ladiya and Adama,
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[the rightful heirs of Abubakar-Garba] were all before the
trial Court, it would be highly preposterous to summise that
proper and necessary parties had not been sued. And I so
hold.
In the circumstance, the first issue is hereby resolved
against the Appellant in favour of the Respondent. And I so
hold.
ISSUE NO.2
The second issue raises the question of whether or not the
court below erred in law when it failed to reject the
testimony of the plaintiff’s witness No.1 (PW1).
The said second issue is distilled from ground two of the
notice of appeal, viz:
Ground Two:
2. The Lower Court erred in law when it adduced the
testimony of the plaintiff witness, No. 1.
Particulars of Error
The lower Court failed to reject the testimony given
by the plaintiff's witness No.1.
Instructively, the instant second issue relates to the
Appellant's submission under paragraph 4.2 of the brief
thereof, viz:
My lords going by the record of proceeding at page 41
the plaintiff’s witness of possession testified that the
lands in dispute belong to Dogo and the appellant’s
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father inherited it from Dogo, the respondent claim
was on the ownership of his mother not the
inheritance of Dogo. Therefore the testimony did not
synchronize the statement of claim.
My lords it is trite law that whenever testimony did
not synchronize the statement of claim such a
testimony shall be rejected. See AL-FIQHUL ISLAMIY
WA ADILLATIHI VOL.8 PAGE 6000. The testimony
shall synchronize the statement of claim, if not such a
testimony shall be rejected.
The PW1, Alh. Hassan Haruna, testified regarding the four
farms in dispute [1] Riba; [2] Diddibi; [3] Gawa; and [4]
Kanjigawa farms in dispute which he said belonged to
Dogo. He equally testified that the farms in question:
[They] were not distributed ...
They are in the custody of Magaji, Ladiya and
Adamu…
I saw their grandfather cultivating and their father
father Inherited it.
The trial Court once more asked the PW1:
"Do you know how these farms met magaji’s father?”
To which the PW1 replied:
"Ans: He inherited it.”
I would want to hold, that against the backdrop of the
foregoing pieces of evidence
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adduced by the PW1, the only reasonable conclusion that
could be deduced therefrom is that Dogo's farms had been
distributed between the heirs thereof, and that Duwale's
own share had been withheld by the Respondent's father.
The DW2, Alhassan Musa seemed to have reinforced the
evidence of the plaintiff when he testified to the effect,
inter alia, that [i] he knew Dogo had left four farms and one
house in dispute; [ii] he described the locations and
boundaries of the farms and house in dispute. He equally
testified to the effect thus:
I knew that the two farms [were] distributed among
A b u b a k a r [ R e s p o n d e n t ’ s f a t h e r ] a n d
Duwale [Appellant’s mother] .. .
I was there when the distribution took place.
The issue is that the two [2] farms are [sic]
distributed remain one house to be distributed said
by Alhaji Isah and Aliyu but they have died and Aliyu
asked Haruna, is there any complaint? But he kept
silent, he then asked him again, he replied is ok, then
he said what is remain is Kan Jigawa farm and we are
going to distribute/divide it, Abubakar [Garba] said
no, and asked him why he said because he is therein
cultivating
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it, they were said the farm should be divided to take
share of Duzoale, this what I knew about.
Thus, in view of the above far-reaching highlight, there is
every cogent reason for me to hold, that the second issue
ought to be, and it's hereby resolved against the Appellant,
in favour of the Respondent.
The trial Court aptly found at page 56 lines 5 - 17 of the
record, thus:
The witnesses of defendant backed the claim of the
plaintiff and their heir Duwale. And the Court hold
that the witnesses of the plaintiff supersede the
dependant once (sic) and it was convinced that the
distribution of Dogo inheritance at house and two
farms took place which are in magajis custody and his
brothers which are located in Kwari are belongs to
Dogo father to Duwale and Garba and seize it from
magaji to distribute it to the heirs of Dogo i.e. Garba
and Duwale as from today it becomes an inheritance...
Regrettably, however, in the course of the distribution of
the house and two farms in dispute, which were aptly
proved to be yet distributed, the trial Court held that
Duwale should not have any share from the 'Kanjigawa
farm’. I agree
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with the decision of the Court below at page 72, lines 8 -16,
of the record:-
The lower Court miscarried of justice when it changed
its judgment with another. Therefore, there is no
justice in this distribution because the judge decided
to distribute 2 farms and 1 house, but he discharged
one farm from the farms which he decided upon
which as he said early the distribution should be
three (3). The male child should take 2 and 1 to the
female child...
Undoubtedly, the above finding of the Court below is
cogent and duly in accord with the facts and evidence on
record. As aptly found by the Court below, the distribution
of the 'Kanjigawa farm' to the exclusion of Duwale, is
repugnant to the trite fundamental Quranic injunction:
"Allah (thus) directs you as regards you children's
[inheritance]: to the male, a portion to that of two
females: If only daughters, two or more their share is
two thirds of the inheritance; if only one, her share is
a half ..."
See the Holy Qur'an, Al Nisa'i: verse 11.
Hence, having effectively resolved the two issues in favour
of the Respondent, against the Appellant, there's no gain-
saying the fact,
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that the appeal is grossly unmeritorious, and it is hereby
dismissed by me.
The judgment of the Jigawa State Sharia Court of Appeal,
holden at Dutse, delivered on December 8, 2015 in Appeal
No. SCMG/CVA/19/2015, is hereby affirmed by me.
Parties shall bear their respective costs of litigation.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have
had the privilege of reading before now, the lead judgment
of my learned brother, Hon. Justice Ibrahim Mohammed
Musa Saulawa, JCA in this appeal matter and which said
lead judgment has just been delivered. I agree with his
reasoning and conclusion dismissing the appeal on the
basis that it is unmeritorious. I accordingly dismiss the
same. I also endorse the order made therein that the
parties shall bear their respective costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read with
keen interest the draft copy of the lead judgment just
delivered by my learned brother, IBRAHIM MOHAMMED
MUSA SAULAWA, PJCA and tally with his reasoning and
conclusion of this appeal with nothing to add. My noble lord
has meticulously considered and determined the two
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issues distilled from the two grounds of appeal.
I joined my lord in resolving the two issues against the
Appellant and in favour of the Respondent. The appeal
lacks merit and therefore dismissed.
Consequent upon which the judgment of Sharia Court of
Appeal, Jigawa State holden at Dutse, delivered on
8/12/2015 in Appeal No. SCA/JG/CV.A/19/2015 is hereby
affirmed. I make no order as to costs.
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Appearances:
Saminu Sunusi, Esq. For Appellant(s)
Bello Abdullahi For Respondent(s)
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