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Dalibi v. Tela

SHEHU DALIBI

V

AHMADU TELA

COURT OF APPEAL

( KADUNA  DIVISION )

MURITALA AREMU OKUNOLA,  JCA  ( Presided )

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE,  JCA

IBRAHIM TANKO MUHAMMAD,  JCA ( Read the Lead Judgment )

CA/K/135/S/99

THURSDAY  27TH APRIL, 2000

ESTOPPEL - Estoppel per rem judicatam - Whether and when applicable in Islamic Law

ISLAMIC LAW - Sharia law -  Doctrine of estoppel per rem judicatam Whether and when applicable in Islamic Law

ISLAMIC LAW - Sharia law - Hauzi (long possession) - Whether defeats right to property of deceased

SUCCESSION - Sharia law - Islamic Law of succession - Hauzi (long possession) - Whether defeats right to property of deceased

Issues:

  1. Whether the trial court was not barred from entertaining the suit by the doctrine of estoppel per rem judicatam.
  2. Whether long period of possession (hauzi) can defeat succession to the property of a deceased person.

Facts:

The plaintiff/respondent, who is a full brother of the appellant took out an action against him at the Upper Area Court II, Birnin Kebbi, claiming some farmlands from him. The plaintiff/respondent’s claim was that they inherited the farmlands from their late father and that the defendant has now withheld the farmlands. The defendant/appellant contended on the other hand, that all the farmlands which belonged to their father had been distributed amongst them in 1971 by a court.  Upon production of the certified true copies of the said proceeding of the said court, the trial court could not trace from the proceedings where the deceased’s estate was distributed.

The trial court then took evidence and ordered for the distribution of the farmlands to the deceased’s legal heirs.

Dissatisfied, the defendant appealed to the Kebbi State, Sharia Court of Appeal, which court affirmed the decision of the trial court.

Being further dissatisfied, the appellant appealed to the Court of Appeal.