Legalpedia Citation: (2023-10) Legalpedia 76924 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Thu Oct 5, 2023

Suit Number: CA/K/317/S/2017

CORAM

HON. JUSTICE A. M. TALBA JCA

HON. JUSTICE A. M. LAMIDO JCA

HON. JUSTICE M. DANJUMA JCA

PARTIES

ABDULLAHI AWWALU

APPELLANTS

1. SUYUDI SHUAIBU
2. HASSANA SUYUDI

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: APPEAL, CONSTITUTIONAL LAW, EVIDENCE, PRACTICE AND PROCEDURE, SHARIA FAMILY LAW

SUMMARY OF FACTS

This appeal bothers on paternity of a girl child claimed to have been delivered barely four (4) months and nine (9) days after the marriage between the Appellant and the 2nd Respondent was conducted. The Appellant, as plaintiff at the trial sharia court contested the paternity of the baby girl on the ground that the 1st Respondent (then defendant), and the Appellant’s father-in-law married his already pregnant daughter to the Appellant who had no knowledge of the pregnancy. However, the 1st Respondent denied the claim. The trial court then invited the 2nd Respondent who insisted that the Appellant is the biological father of the girl child and was aware of her pregnancy but was indifferent. Delivering judgment on 26/08/2016, the trial court found for the Respondents.

Not satisfied with the decision of the trial court, the Appellant appealed to the Upper Sharia Court Musawa. After taking oral submission of parties and considering the record of proceedings of the trial court, the Upper Sharia Court, in a judgment delivered on the 15th day of October, 2016, allowed the appeal and set aside the judgment of the trial court.

Aggrieved by the judgment of the Upper Sharia Court, the Respondents herein appealed to the court below. After taking the testimonies of the witnesses on both sides, the court below allowed the appeal, set aside the judgment of the Upper Sharia Court Musawa and affirmed the decision of the trial Sharia Court, Jikamshi.

Dissatisfied by the judgment of the court below, the Appellant filed the instant appeal.

 

HELD

Appeal dismissed

ISSUES

1. Whether the Sharia Court of Appeal, Katsina State was right, when it sat as a court of first instance and exercised original jurisdiction by hearing directly from witnesses?
2. Whether the honourable learned Kadis of the court below was right when, in exercising their power to rehear the case leading to the appeal before the court, they permitted the 2nd Respondent herein (the 2nd Appellant at the court) to give evidence in a case she was a party to?
3. Whether the 2nd Respondent (the 2nd Appellant at the court below) discharged the evidential burden of proof squarely placed on her in accordance with the standard of proof laid down by sharia to be entitled to judgment of the court below?
4. Whether the court below was justified in granting paternity of the child in issue to the Appellant?
5. Whether the learned Kadis of the court below were right when they held that betrayal is lawful marriage in Islam?

 

RATIONES DECIDENDI

JURISDICTION – THE IMPORTANCE OF JURISDICTION IN ADJUDICATION

Jurisdiction is the very basis of any adjudication. Thus, it is the life blood of all trials whether it be at the court of trial or an appeal. Strip a court of jurisdiction and the trial conducted no matter how meticulously done amounts to a nullity. See the case of MADUKOLU V. NKEMDILIM (1962) 2 All NLR 581; BALOGUN V. OHIWHERE (2005) All FWLR (Pt. 281) 1724; ONUORAH V. KADUNA PRC LTD (2005) All FWLR (Pt. 256) 1356; OKEREKE V. YAR’ADUA (2008) All FWLR (Pt. 343) 636; ESSIEN V. ESSIEN (2010) All FWLR (Pt. 523) 1192; and PETRO JESSICA ENTERPRISES LTD V. LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (Pt. 244) 693.

Thus, without jurisdiction, the labourers (i.e. the parties, their counsel and the court) labours in vain. In the case of AG. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (Pt. III) 552, it was stated that;

“Without jurisdiction, the labourers, that is the litigant and counsel on the one hand and the court on the other hand labour in vain”. – Per Mohammed Danjuma, JCA

 

JURISDICTION – HOW JURISDICTION IS CONFERRED

It is well settled that the jurisdiction of any court to adjudicate in any case or matter is conferred by the statute which creates it. The only circumstance in which the court’s jurisdiction may be expanded or extended is by specific legislation to that effect enacted by the legislature. Neither the court nor any of the parties can confer jurisdiction on the court by conduct, consent or by inference. See the case of Okulate V. Awosanya (2000) 1 SC 107, (2000) 2 NWLR (Pt. 646) 530; Obiuweubi V. CBN (2011) 7 NWLR (Pt. 1247) 465; Okezie V. Fed. A. G. & Anor (1979) 6-9 SC (Reprint) 1; Ukpong V. Comm. for Finance (2006) 19 NWLR (Pt. 1013) 1 87. – Per Mohammed Danjuma, JCA

 

ISLAMIC LAW – THE ROLE OF APPELLATE COURTS AND THE PROCEDURE UNDER ISLAMIC LAW

In the case of DANJA V. DANJA (1998) 5 NWLR (Pt. 550) Pg. 467 at Pg. 476 Paras. F-H, this court held:

“The role of the appellate courts under Islamic Law and procedure is different from those of their counterparts under the Common Law System. The appellate courts under the Sharia system are not restricted to the grounds or issues raised by the parties before them. At the appellate stage the appellate court can rehear or retry the case in whole or in parts”.

Also, in BELI V. UMAR (2005) 12 NWLR Part 939 Page 325 CA. This court held that:

“The Islamic law court especially the Appellate court are mandated to look into the whole garment of a case and see where the justice of the case lies irrespective of whatever technicalities that may be involved. It is therefore not mandatory nor is it necessary for the court to rely solely on the notice and grounds of the appeal, at any time or stage provided there are enough materials upon which a just decision can be reached. The proceeding under Islamic Law is peculiar when compared with Common Law”. – Per Mohammed Danjuma, JCA

 

SHARIA LAW – THE NATURE OF SHARIA LAW PROCEDURE

Sharia procedure is self-acting system, in the sense of leaving as little as possible uncertain. For this purpose, it goes into the most minute details, specifically exactly what amount evidence is requisite in each particular case, describing how divergent evidence is to be reconciled, directing which side is to be preferred where the testimony is conflicting, fixing the initial presumption arising from the nature of the claim and a multiplicity of further presumptions connected with details of evidence. See the case of Ayye & 1 Or. V. Yar’aduwa (1991) 8 NWLR (Pt. 210) Pg. 464 at Pg. 473 Paras. E-G. – Per Mohammed Danjuma, JCA

TESTIMONY – THE TESTIMONY OF AN INTERESTED PARTY UNDER SHARIA LAW

In the case of BUWAI V. BINGEL (2017) LPELR-4334 (CA), it was stated thus:

“In Muhammadu A. Adamu Vs. Bukar Kasumi the court held that “(Wala Tajuzu Shada Tujarin Linafsihi Nafan, Wala Dafinashim Aniya Labaran)” meaning, the testimony of an interested party is not admissible”. – Per Mohammed Danjuma, JCA

PROOF – BURDEN OF PROOF IN SHARIA LAW

And Hadith states that the Messenger of Allah, Prophet Muhammad (SAW) stated thus:

“He who asserts must prove and oath of denial lies on him who denies”.

See AL-BAIHAQI, A.H (1973) SUNAN-AL-KUBRA. FAR AL-FIKR (BEIRUT) Vol. viii P. 177 – Per Mohammed Danjuma, JCA

 

PREGNANCY – CONDUCT OF HUSBANDS DENYING PREGNANCY UNDER SHARIA LAW

In the book Albajah Vol. 1 Page 534, it is stated:

“If pregnancy occurs and the husband maintain silence for a period of time after his knowledge of the pregnancy, then later rejected it by way of li’ani, he will not be allowed to take the oath of li’ani. He will be punished by way of Haddi….”

The Holy Quran 24 Verse 6 and 7… Meaning:

“Those who accused their wives and do not have witnesses except themselves, should swear four times in the name of ALLAH the testimony of each such person being that he is speaking the truth and (swear) a fifth time that if he tells a lie the curse of ALLAH be on him”. – Per Mohammed Danjuma, JCA

TRADITION – THE ROLE OF TRADITIONS IN MARRIAGES UNDER SHARIA LAW

When discussing about marriage, the tradition of the area concerned must be taken into account. See KULLIYATIFUL FIQHIYYA of IMAM AL-MAQRIY.

In SHARHIN MAYYARAT AL FASIY Vol. 1 Page 246-247, it was stated that Abu Salim Sayyidi Ibrahim Ibn Abdulrahman Al-Jaallaliy, studied one tradition of engagement (Baiko) in which a man will seek the hand of a woman in marriage. If the consent of the father is obtained, arrangement is made for the wedding fatiha to be conducted on the day she will be leaving for matrimonial home and provisions provided for her.

In such situation, a situation the Appellant herein refers to as ‘Betrothal’, if the lady involved is later discovered to be carrying pregnancy, the book SHARI’A MAYYARAH Vol. 1 Page 249, Quoted Imam Ibn Fatuh as saying:

“Such type of tradition is enough to confirm the establishment of marriage”.

Similarly, in the same book, Sayyid Sharif Al-Mazdagri was quoted as saying:

“Such type of marriage is a legal marriage and in terms of its decision it is confirmed”. – Per Mohammed Danjuma, JCA

 

CUSTOMS – THE PLACE OF CUSTOMS UNDER SHARIA LAW

This is in line with the saying:… Meaning:

“The custom of the people is like tradition (Sunnah) of the Holy Prophet (SAW)”. – Per Mohammed Danjuma, JCA

PATERNITY – THE BASIC PRESUMPTIONS OF PATERNITY UNDER SHARIA LAW

The issue of paternity of a child in islamic law is a serious one and that is why far reaching presumptions are made. Once there is a valid contract of marriage then a child born during its subsistence and within the gestation period, is presumed to be the legitimate issue of the father. The prophet’s (SAW) words in this are “al-walael lil firash” which means that the child belongs to the bed ie whoever has the legal right to have sexual relations with a woman in a marriage has fatherhood attributed to him. Secondly, there is a presumption of paternity on he who acknowledged it and thirdly, where there is evidence adduced.

In this instant case evidence was adduced. See the case of Unguwa Uku V. Unguwa Uku (2013) 1 SQLR (pt iv) 35. – Per A. M. Talba, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Sharia Court of Appeal Law Cap. 124 Laws of Katsina State, 1991
3. Court of Appeal Rules

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