Judgment
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the interlocutory decision of the Kano State High Court in Suit No. K/02/2020, delivered on 23/2/2021, whereof the learned trial Judge dismissed the preliminary objection raised by the Defendant (now Appellant) against the suit.
At the High Court, the Respondents had sought the following reliefs: (1) A declaration that by virtue of Hausa custom and tradition, the puddle situate at Lungun Cikin Gida, Gandun Albasa, Kano State, belongs to Sarki. (2) A declaration that the puddle, situate at Lungun Cikin Gida, Gandun Albasa, Kano encroached on the plaintiffs’ land by 33ft width and 76ft length, resulting from the 1986 and 1993 overflowing in which the puddle destroyed the plaintiffs’ house. (3) A declaration that the plaintiffs are entitled to recover the 33ft width and 76ft length of their land consumed by the puddle. (4) Cost of action.
Appellants at the lower Court had filed preliminary objection to the suit, challenging the locus standi of the plaintiffs to bring the suit and saying that the trial Court lacked jurisdiction to entertain the suit. The trial Court, in a considered ruling, dismissed the preliminary objection. The Court said: “In the case before me, the plaintiff/respondent (sic) in his statement of claim is seeking to recover a piece of land, measuring 33ft width and 76ft length, from the land in dispute.
This is my opinion; the plaintiff/respondent (sic) is claiming exclusive right to the plot of land measuring 33ft width and 76ft length. This does not I (sic) touch on the distribution of estate of Late Mallam Nata’alu. It is the law under Islamic Personal Law, that an estate of a deceased will not be ripe for distribution until any dispute in connection with the estate is resolved. In the instant case, before the estate of the Late Nata’alu could became (sic) question regarding the issue of succession in order to confer jurisdiction on Sharia Courts.
All issues or disputes attributed to the estate must be resolved to make the estate inheritable i.e. question of title to a land, a dispute over the right to make a particular property within the estate, payment of debts and other issues that are related to the estate… I therefore do not agree with the submissions and agreements (sic) of Counsel to the defendant that the claim of the plaintiff/respondents before this Court is an issue of the distribution of the estate of Late Nata’alu, which is an issue of Islamic personal law 1 do not consider the further counter-affidavit of the plaintiff/respondent, this is because Exhibit DLHT attached is a document made in Hausa language and there is no any version of it made in the language of the Court.
