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Jiddu v. Abuna

ALHAJI JIDDUN

V

ABBA ABUNA

GONI ADAM

SUPREME COURT OF  NIGERIA

ABUBAKAR BASHIR WALI,  JSC ( Presided and Read the Lead Judgment )

IDRIS LEGBO KUTIGI,  JSC

SYLVESTER UMARU ONU,  JSC

OKAY ACHIKE,  JSC

EMMANUEL OLAYINKA AYOOLA,  JSC

SC. 135/1994

FRIDAY, 6TH OCTOBER, 2000

APPEAL - Fresh point on appeal - Raising of without leave of court Propriety of

EVIDENCE - Proof - Death of two persons - Question of who died first under Islamic law - How proved

ISLAMIC LAW AND PROCEDURE  - Death of two persons - Question of who died first - How established

ISLAMIC LAW AND PROCEDURE - Estate of deceased Muslim - Sharing of estate amongst heirs - How done - Option available to heirs

ISLAMIC LAW AND PROCEDURE - Monetary claim - How established -

Plaintiff  failing to establish - Procedure to follow thereafter

ISLAMIC LAW AND PROCEDURE - Oath of rebuttal - When defendant will be called to take - Defendant refusing thereto - Procedure thereafter

ISLAMIC LAW AND PROCEDURE  - Parties to a suit  - Designation of Duty on court - How discharged - Whether complainant necessarily becomes the plaintiff

JUDGMENT AND ORDERS - Judgment declared a nullity by appellate court - Implication of - Proper order to make

Issue:

Having regard to the fact and circumstance of the case together with evidence adduced by the appellant at the trial before the Upper Area Court 1 , Maiduguri, whether the Court of Appeal was right in restoring the judgment of the trial court which affirmed the settlement reached over the sharing of 1 /8th of the estate of Alhaji Ramat, to his deceased wife, Hajiya Kwayisu.

Facts:

Following the demise of one Alhaji Ramat, who had three wives and one of his wives, Hajiya Kwayisu, who were both murdered by a gang of armed robbers on the same night, 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 1/8th of the estate to the wives, Hajiya Kwayisu inclusive. In the sharing, Hajiya Kwayisu (deceased) was allotted a house with six rooms.

The appellant in this case, was one of the relations of Alhaji Ramat, that witnessed the sharing of the estate and the respondents, the children of Hajiya Kwayisu .

In their claim at the Upper Area Court 1, Maiduguri, Borno State, the respondents as plaintiffs alleged that the house consisting of six rooms was to be their mother’s share but Alhaji Jiddun, the defendant/appellant denied them the house because of his allegation that their mother predeceased her husband by death.

When the Upper Area Court heard evidence on the matter, the defendant gave evidence by himself and called two other witnesses, Ya-Adama, Alhaji Abbas, one of the two surviving wives of Alhaji Ramat, and Hajiya Shuwa, a neighbour’s wife but none of them testified in support of the defendant/ appellant’s allegation.

In its decision, the trial Upper Area Court affirmed the settlement reached by the representatives of the deceased persons in which the house with the six rooms was given to Hajiya Kwayisu, as her share from 1/8th of the estate of her deceased husband.

Dissatisfied, the defendant/appellant appealed to the Sharia Court of Appeal, where it was held that it was improper for the Upper Area Court to include late Hajiya Kwayisu, among the heirs of late Alhaji Ramat, for it was not established who preceded the other by death.

The plaintiff thereafter appealed to the Court of Appeal, Jos Division, where the decision of the Sharia Court of Appeal was nullified and the decision of the trial Upper Area Court upheld.

The defendant appealed to the Supreme Court.  In determining the appeal, the Supreme Court extensively considered the practice and procedure relating to Islamic Law of succession.