(PROVINCE COURT)

MADINA ALI MUSA v. ALI MOHAMED ALI HADAL

PC-REV-88-1956 (Port Sudan )

 Principles

·  Civil Procedure—Jurisdiction—Inheritance pleaded in defence to suit for eviction— Suit must be adjourned for Sharia Court decision—Civi1 Justice Ordinance 1929, ss. 38 and 39

Sharia—Jurisdiction of Sharia Court—Inheritance to Civil--Suit for eviction—Question for Sharia Justice Ordinance 1929. ss. 38 and 39

Judgment

An action in a Civil Court for eviction, which was defended on the ground that the occupant (defendant was sole heir to the deceased registered owner. must be adjourned to the Sharia Court for a determination of the question of inheritance under Civil Justice Ordinance 1929, ss 38 and 39.

M. E. Mubarak P.1. October 22, 1957 house No. 584, Deim Arab, Port Sudan, was on June 7, 1956 (and is still, I think) registered in the name of Fatma Mohamed Au Hadal. The said Fatma died at Deim Arab many years back.

On June 12, 1956, one Ali Mohamed Ali Hadal (who never appeared in person but was always represented in court by a duly authorised agent, by name Tahir Taha, vide attestation No. 308—1956, Port Sudan Sharia Court, dated July 30, 1956) instituted CS-I006-1956  in the District Court against Madina Ali Musa, applicant, claiming eviction

It is worth noting here that the suit was allowed with the agent as plaintiff. The certificate from the Town Clerk showed that Fatma Mohamed Ali Hadal was the allottee. At that time Tahir Taha had no tawkil from Ali Mohamed Ali Hadal, as this was made over one and a half months after the institution of the suit. Later on, a fetwa (No. 8—1956, Port Sudan Sharia Court, dated July 24. 1956) was produced, and it shows that:

(a) Fatma Ali Hadal died in 1953 in Port Sudan;

(b) she left (as part of her estate) a house at Deim Arab, No. 584, whose estimated value is £S.30000 m/ms.; and

(c) that her sole heir was her nephew Ali Mohamed Ali Hadal, the present respondent and the proper plaintiff in the court below.

 When Madina Ali Musa appeared in the District Court, her defence to the claim of eviction was that she was the daughter and sole heir of Fatma Mohamed Ali Hadal, and hence (by the Sharia law of inheritance) was the owner of the plot in dispute. Her statement in this respect is, of course, contradictory to the finding of the Sharia Kadi in Fetwa No. 8-1956.

This question, of whether Madina Ali Musa is a daughter of Fatma Mohamed Ali Hadal and hence an heir, is one which the Civil Courts are not competent to decide. It is a matter which comes originally within the jurisdiction of the Mohammedan Law Courts. (See Sudan Mohammedan Law Courts Ordinance 1902, S. 6, and Civil Justice Ordinance 1929, S. 38

The District Judge at this stage ought to have adjourned the case to enable the applicant Madina Ali Musa to obtain a decision on the points raised by her from the competent Sharia Court, or else itself referred the matter to the competent Sharia Court for a decision. (See Civil Justice Ordinance 1929. S. 39). Instead of that, the District Judge heard evidence and decided the point without jurisdiction. A decree was therefore passed ordering defendant’s eviction, and directing the Town cerk to register Plot No. 584 in the name of plaintiff. This direction is also without jurisdiction, as it comes within the power of the Sharia Court, which is the only tribunal that can make such an order.

It may be that the applicant Madina is not satisfied with the Kadi’s decision No. 8—1956, Port Sudan Sharia Court, which declares Ali Mohamed Hadal as the sole heir of Fatma Mohamed Ali Hadal. Her only remedy is to apply to the Grand Kadi under Sharia Circular No. 30, paragraph 9, through Sharia Kadi, Port Sudan, for review of the fetwa. She will then have to pay a fee. In the particular circumstances of this case, I prefer that the objection to the fetwa be raised by the District Court, which should itself refer the matter of inheritance to Port Sudan Sharia Court. The applicant then will not have to pay any fee.

In the end, therefore, I set aside the decree passed in CS-1006-1956 and return the papers to the District Judge with the direction that the following matters be referred to Sharia Kadi, Port Sudan (referring to his Fetwa No. 8-1956) for his decision on the following points under Civil Justice Ordinance 1929,s. 39 (i) (b)

(a) whether applicant Madina Ali Musa is the daughter of Fatma Mohamed Ali Hadal;

(b) whether she is the sole heir;

(c) whether Ali Mohamed Ali Hadal is or is not an heir of Fatma Mohamed Ali Hadal; and

(d) if both applicant and respondent are heirs of fatma  Mohamed Ali Hadal, then what is the share of each in Plot 584, Deim Arab.

The court may then resume trial of the case after receipt of the Kadi’s decision on the points mentioned above.

I also direct that when the matter is referred by the District Judge to the Sharia Kadi, a copy of this judgment (in Arabic) be sent with his letter to the Kadi for his information.