LEGAL PRINCIPLE: ISLAMIC LAW – Estate of a Missing Person (Mafqud) – Burden of Proof
PRINCIPLE STATEMENT
Whoever claims ownership of property in the possession of another and alleges it is part of inherited estate must establish the death of his predecessor and prove how he becomes an heir before the person in possession is asked to explain.
RATIO DECIDENDI (SOURCE)
Per Mohammed, JSC, in Jatau v. Mailafiya (1998) NLC-2151994(SC) at p. 5; Paras B–D.
"Whoever claims ownership in fee simple of a property in the possession of another and alleges that it is part of the estate he has inherited, the person in possession of the estate shall not be asked to explain how he came about it until the claimant has established the death of his deceased predecessor from whom he claims to have inherited the estate and proves also how he becomes an heir of the said deceased predecessor in respect of the said estate."
EXPLANATION / SCOPE
The claimant bears the initial burden of proving death and heirship. The possessor need not explain until the claimant discharges that burden. The principle applies to claims of inheritance. The rule protects possession. The court will not shift the burden prematurely. The principle is based on Islamic law. The claimant must adduce evidence of death and heirship.