Why The Supreme Court Needs To Review Its Decision In Jiddu V. Abuna (2000) 14 Nwlr (Part 686) P. 209

By Ibrahim Alhassan, Esq.

“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

INTRODUCTION

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.

1^st 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.”

SUPREME COURT

The Appellant formulated four issues for determination to
wit:

1. “Was the creation of missing
   link, videfailure to administer oath on the
   plaintiff/appellant the mistake of the trial Upper Area Court
   I
2. 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
3. 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?
4. 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:

1. 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.

2. 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]

3. 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.

4. 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.

5. 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]
6. 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.”

7. 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]^[1]

8. 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.

9. 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]

10. 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.

11. 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 1^st 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]

1. 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.

2. Al-Maqdiy Bihi refers to the law upon which a
   court’s decision or verdict is based.

3. 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.

4. Al-Mudda’iy refers to a Complainant in a
   suit.

5. Al-Mudda’h Alaihim refers to a
   Respondent/Defendant in a suit.

6. 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]^[2]

In Safeti v. Safeti [2007] 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^[3]
(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]^[4]

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.

CONCLUSION

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 [2020] 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:

1. Where there is a clerical mistake in the judgment or
   order;
2. Where there is an error arising from accidental slip or
   omission;
3. Where there arises the necessity for carrying out its
   own meaning and to make its intention plain;
4. Where any of the parties obtained judgment by fraud or
   deceit;
5. Where such decision is a nullity;
6. Where it is obvious that the court was misled into
   giving the decision under a wrong belief that the parties consented
   to it;
7. When judgment was given without
   jurisdiction;
8. Where the procedure adopted was such as to
   deprive the decision or judgment of the character of a legitimate
   adjudication;
9. Where the writ or application was not served on the
   other party, or there is denial of fair hearing;
10. 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]^[5]
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]^[6]
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]^[7]
See Hamza v.
Yusuf^[8] (2006) 10 NWLR (Pt. 988)
238

Written By Ibrahim Alhassan, Esq.
a private Legal practitioner in Abuja-FCT

By Ibrahim Alhassan, Esq.

“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

INTRODUCTION

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.

1^st 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.”

SUPREME COURT

The Appellant formulated four issues for determination to
wit:

1. “Was the creation of missing
   link, videfailure to administer oath on the
   plaintiff/appellant the mistake of the trial Upper Area Court
   I
2. 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
3. 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?
4. 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:

1. 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.

2. 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]

3. 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.

4. 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.

5. 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]
6. 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.”

7. 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]^[1]

8. 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.

9. 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]

10. 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.

11. 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 1^st 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]

1. 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.

2. Al-Maqdiy Bihi refers to the law upon which a
   court’s decision or verdict is based.

3. 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.

4. Al-Mudda’iy refers to a Complainant in a
   suit.

5. Al-Mudda’h Alaihim refers to a
   Respondent/Defendant in a suit.

6. 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]^[2]

In Safeti v. Safeti [2007] 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^[3] (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]^[4]

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.

CONCLUSION

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 [2020] 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:

1. Where there is a clerical mistake in the judgment or
   order;
2. Where there is an error arising from accidental slip or
   omission;
3. Where there arises the necessity for carrying out its
   own meaning and to make its intention plain;
4. Where any of the parties obtained judgment by fraud or
   deceit;
5. Where such decision is a nullity;
6. Where it is obvious that the court was misled into
   giving the decision under a wrong belief that the parties consented
   to it;
7. When judgment was given without
   jurisdiction;
8. Where the procedure adopted was such as to
   deprive the decision or judgment of the character of a legitimate
   adjudication;
9. Where the writ or application was not served on the
   other party, or there is denial of fair hearing;
10. 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]^[5]
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]^[6]
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]^[7]
See Hamza v.
Yusuf^[8] (2006) 10 NWLR (Pt. 988)
238

Written By Ibrahim Alhassan, Esq.
a private Legal practitioner in Abuja-FCT