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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