Although the facts of this case are not violent, they are quite telling, as it involves family dispute; that reminds us that even blood relations are not immune from conflict, especially when land is involved
It was an extended family of late Alhaji Haruna III, a traditional ruler (Sarkin Kabi Jega) of the Jega Emirate in Kebbi State, Nigeria. Sarkin Kabi Jega, as he then was, had 4 wives, 25 male children, and 13 female children.Upon his demise in 2006, issues now ensued among the children as to a specific parcel of land.
ALHAJI HARUNA HARUNA MAI-JEGA, who could be inferred to be the eldest son, was the Appellant in this case. He was called upon by his brothers: ALHAJI GARBA HARUNA, MUSLIM HARUNA, JUNAIDU HARUNA, and ABDUSSALAM HARUNA, who are the Respondents, to share their father’s land among the children as their joint inheritance, including the one being used by the Appellant as farmland.
The Appellant, in response, vehemently protested and denied the joint ownership of the land. He contended that the said farmland belonged to him alone, as it was given to him as a gift by their deceased father since 1983. He further claimed that all the Respondents and the father’s surviving wives were very much aware of the said gift.
The Respondents (Alhaji Garba Haruna & 3 others), in a bid to ensure the distribution of the said land without hesitation, instituted an action at the Upper Shari’a Court, Jega, Kebbi State, for the court’s determination on 14/4/2016.
Trial began!
The Appellant maintained his ground that the property was a gift to him and informed the trial court that his witnesses were his three stepmothers, as the purported gift was made in their presence. He vigorously urged the court to summon them to appear and testify. They appeared; however, to his dismay, not in his favour as they all testified that they did not know of the purported gift.
At the conclusion of hearing, the trial court held that the Appellant had no case. He could not establish the purported gift, and the court consequently held that the farmland belonged to their late father and ordered that it be shared among all heirs.
The Respondents were happy, such victory is certainly worth being happy about. I would also be happy; if it were you, wouldn’t you be happy? Of course, everyone would be happy. But the Appellant was not happy. He believed the trial court erred and proceeded to the Shari’a Court of Appeal. There the entire decision of the trial court was quashed and the gift purportedly claimed to be made in his favour by their father was affirmed. It’s then the turn of the Appellant to be equally happy, while the Respondents would not.
And indeed, they were not. That explains why they further appealed to the Court of Appeal, which set aside the judgment of the Shari’a Court of Appeal and restored the decision of the trial court (judgment delivered on 7th December 2018). Imagine their smiling faces once again. Looks like a back-and-forth movement, like a pendulum, right? That’s litigation for you; very uncertain making parties never to settle until it is finally settled.
He (the Appellant) therefore, being aggrieved, found his way to the Supreme Court; the final box stop of every litigant. This is where the case takes an interesting turn, as the Appellant took a new dimension in his argument. Not just any argument, but one on jurisdiction; the lifeblood of every suit. He contended inter alia that the members of the panel that sat over the appeal in the Court of Appeal were not qualified to do so.
Put differently, it was his contention that Hon. Justice Fredrick O. Oho, J.C.A., one of the panellists at the Court of Appeal, was not learned in Islamic Personal Law, while Hon. Justice Amina A. Wambai, J.C.A., being of the female gender, was not qualified to be a judge based on the principles of Islamic Law. As such, there was a flagrant defilement of the provision of section 247(a) of the 1999 Constitution (as amended) and the principles of Islamic Law, thereby rendering the entire proceedings before the Court of Appeal null and void.
At first reading, one may be tempted to pause and feel like applauding learned counsel for the Appellant, as the argument sounds brilliant. But is that actually the law? Can the argument be said to be potent and capable of disclosing any hostility to the judgement of the lower court, considering the prevailing practice of constitutionalism in Nigeria?
The Supreme Court, per J.Y. TUKUR, J.S.C. (who read the leading judgment), eruditely addressed the above questions. His Lordship acknowledged that under classical Islamic jurisprudence, it’s settled and beyond contention that a judge must be male not female, muslim not christian, Son not servant and sane not insane making reference to authorities such as Asalul Madari, Vol. 3 p.196; Tuhfa (Ihkamul Ahkam); and Qawa Ninul Fiqhiyy, p.228. Therefore, the argument of counsel to the Appellant was indeed rooted in the toga of Islamic principles.
HOWEVER, when viewed through the lens of constitutional validity, section 247 of the 1999 Constitution (as amended) provides that:
‘The Court of Appeal shall be duly constituted… if it consists of not less than THREE JUSTICES… LEARNED IN ISLAMIC PERSONAL LAW.[Capitalizations mine, for emphasis]’
A sober and meticulous reading of this unambiguous Provision reveals that the only requirement is that not less than three Justices must be learned in Islamic Personal Law. Nothing more, nothing less. No single word therein suggests ‘Gender’ or ‘Religion’ whatsoever.
Regrettably, My Lord observed that: that’s the state of things as реr the рrоvisions of the Constitution. This lacunae саn only bе filled bу аn amendment of the relevant provisions of the Constitution bу inserting where nесеssаrу the provision that the ‘JUSTICES LEARNED IN ISLAMIC PERSONAL LAW MUST ALSO BE MALE MUSLIM JUSTICES’ to bring same in line with the principles of Islamic Law, and that саn only bе done by the legislature not the Court, because to import such requirements into the provision, by the court, would be to legislate from the bench, something the judiciary must never do.
Furthermore, the contention that Hon. Justice Fredrick O. Oho, J.C.A., being a Christian, was not qualified remained mere conjecture in the realm of speculation, as there was no evidence assembled by the appellant before the court that the learned Justice lacked the requisite qualification. After all, legal knowledge is acquired, not inherited. Who says a Christian judge cannot be learned in Islamic law?
In addition, the court rejected the Appellant’s argument that the matter was one of title to land falling within the exclusive jurisdiction of the High Court. The court held that, from the Plaintiffs’ claim at the trial court, the issue was one of inheritance, which squarely falls within Islamic personal law.
In drawing the curtain, the Supreme Court also gave due consideration to the argument on the unsigned document purported to evidence the gift. The court agreed with the Appellant that, unlike under common law, the requirement of signing a document for it to be valid and binding is not known to Islamic law. In Islamic law, the validity of a document depends inter alia on the presence of witnesses, the conduct of the parties, and the fulfilment of contractual conditions, not the mere presence of a signature. Consequently, the Supreme Court was not persuaded, therefore, refused the invitation to set aside the judgment of the Court of Appeal.
The appeal was dismissed.
The judgment of the Court of Appeal was affirmed.
And the farmland remained part of the estate.
Lastly, it is gleanable from the phraseology and tenor of the analysis above that this decision of the Supreme Court was not only legally sound but also in alignment with the spirit and tenet of constitutional provisions. Particularly on the issue of the competency of Justices based on gender and religion, the court could be said to have stood firmly on the supremacy of the Constitution. However, this propels me to observe that the assertion that Islamic law is a distinct legal system in Nigeria may, to some extent, be overstated, because when its principles conflict with constitutional provisions, it is the Constitution that stands tall, and Islamic principles bow or kowtow to the sovereign nature of the constitutional provisions. In this case, it did. And perhaps it must always do. As therefore, suggested by My Lord J.Y Tukur, until the Constitution is amended to expressly incorporate such requirements ‘Justices learned in Islamic Personal Law must also bе male Muslim Justices’, that remains the law, and, as always, we say: as the court pleases.In the light of this brief juridical survey, I say no more.
-Isah Bala Garba is a Level 400 student of Common and Islamic Law and a Senior Advocate of Bayero University, Kano,(SABUK).He has authored numerous legal articles and analyzed many cases in clear, plain language. He can be reached for comments or corrections via: Email: [email protected] Tel: 08100129131
