IN THE COURT OF APPEAL KADUNA JUDICIAL DIVISION HOLDEN AT KADUNA
CORAM
IBRAHIM TANKO MUHAMMAD JUSTICE, COURT OF APPEAL
JAAFARU MIKAILU JUSTICE, COURT OF APPEAL
ABUBAKAR ABDULKADIR JEGA JUSTICE, COURT OF APPEAL
BETWEEN:
HAJARA DUNDUBUS APPELLANT
AND
SALE CHARKA RESPONDENT
JUDGMENT
(DELIVERED BY IBRAHIM TANKO MUHAMMAD, JCA)
The respondent herein, as plaintiff at the Upper Area Court Jahun (trial Court) sued the appellant as defendant in respect of the inheritance of his grand mother named Taannabi. He claimed that she died and left behind four farmlands which were in possession of the defendant.
When asked by the Court as to what took the said farmlands into the hands of the defendant the plaintiff said that they had a case decided by a Dutse Area Court and the court gave the farmlands to the defendant. Plaintiff stated further that his grandmother had a share of the inheritance of defendants father as they were full brother and sister and when the brother (Ibrahim, father to the defendant) died he left behind no parents or wife. He left behind only the defendant and appellants grandmother. Respondents grandmother also died later. The defendant did not deny all these facts.
The trial Court sent its officials to the Locus Inquo who brought the measurements, value and other details concerning the farmlands. After having considered all that transpired between the parties and witnesses as to the parties relationship to the deceased, the trial Court delivered its judgment in which it ordered that the said farmlands be divided into two, viz: one half to the plaintiff and the other half to the defendant.
This judgment did not go well with the defendant and she appealed to the Sharia Court of Appeal Jigawa State, (the lower Court). The lower Court affirmed the decision of the trial court.
Dissatisfied further, the appellant appealed to this Court on three grounds which are as follows:-
i. The honourable kadis erred in their decision to here upheld the decision of the lower court which divided the four farms between us, instead of
giving me the whole farms.
ii. The farms belongs to my later father and I was his only daughter. As the only daughter I have the right to inherit his farms.
iii. The honourable kadis, also failed to request the copy of proceedings of the Area Court Dutse which gave me the whole farms in the first place.
From the above grounds of appeal the only relevant issue for the determination of this appeal is:-
Whether the lower Court was right in affirming the decision of the trial court.
In treating this issue, it is pertinent for me to state that this case is a straight forward one which admits of no controversy at all. The appellant agrees that the respondent is a son to her fathers senior sister by name Taannabi. There was no evidence to show that after his death, appellants fathers estate was divided to his surviving heirs. There was evidence as well that the deceased left behind only the appellant and the respondent as his legal heirs. Again, it is apt at this point, to disabuse the mind of the appellant that she was the only legal heir entitled to the estate of her deceased father. Evidence showed that Taannabi was a senior sister to Ibrahim, appellants father. As a full sister to the deceased, she was pre-eminantly qualified to have a share from her full brothers estate after his demise (and moreso, when there were no circumstances which could cause her total/partial exclusion to inherit him). The appellant was a direct and sole daughter to the deceased.
Allah Himself set out the portion of a daughter where she is the sole child of the deceased. In Quran, Chapter IV verse II, Allah provides:-
Allah Commands you as regards your childrens (inheritance): To the Male, a portion equal 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 half. (underlining supplied by me for emphasis)
Therefore, the appellant was the only daughter surviving her father. The maximum share she is entitled from the net estate of her deceased father is one half of the estate. No one has the power to change this decision as is provided in the Quran. Thus, where the net estate is divided into two one goes to the daughter, the remaining must go to the full sister of the deceased as a residuary heir, in the absence of any other heir. See further Al-Quran: IV:176. A more detailed disposition of the law shows that a full sister has five status:-
(1) Where she is the sole heir she takes one half of the estate.
(2) Where they are two sisters or more, with no heir to agnatise them, they take two- thirds of the net estate.
(3) Where she is agnatised by a full brother ( ) i.e. by a full brother or more, then they share in the ratio of 2:1 (i.e. a man taking double shares of the female).
(4) Where she is agnatised by another ( ) i.e. where she co-exists with a sons daughter or a daughters son or both and there is no full brother of the sister who will agnatise her, then she takes the residue. She takes that share practically as an agnatic heir. The jurisprudential rule is to that effect:-
Translation:
Place the sisters (co-existing) with daughters as agnatisers.
This was the kind of decisions taken by Companions of the Prophet (PBUH) such as Abdullahi bin Masud, Muaz bin Jabal (May Allah be pleased with both). See: Nail Al- Autar vol.6 page 58.
(1) She loses that share where she co-exists with a son and a sons son how-low-soever. Likewise, where she co-exists with the deceased father. Abu Hanifa includes a true fathers father.
See generally: Prof. Al-Zuhayli, (2002) Al-Fiqhu Al-Islami Wa Adillatuhu, (Reprint) 4th ed, vol.10, Dar Al-Fikr Al-Mu-asir, Dimashq, pages 7781 7784.
Thus, it is a misconception of the law by the appellant to claim that she is the one to take the whole estate left behind by the deceased.
In the final analysis, there is no merit in this appeal, I dismiss the appeal. I affirm the decision of the lower court. I make no order of costs in this appeal.
IBRAHIM TANKO MUHAMMAD, JUSTICE, COURT OF APPEAL.
Appellant in Court. Respondent in Court.
COURT OF APPEAL NIGERIA.