Tasiu Rabiu V. Aishatu Amadu (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is further appeal against the judgment of the Court of Appeal, Kaduna Division delivered on 19/11/2002.

This suit has a chequered history. It has had a tortuous and intriguing journey through 4 courts of various jurisdictions and finally to the Apex Court herein. The background facts tell the whole story. The Appellant herein was the Appellant at the Court below. The Respondent as plaintiff had brought a claim against the Appellant as Defendant on grounds of lack of maintenance since delivery, removal and retention of her personal properties, denial of paternity of the child. Accordingly, she sought to know her relationship with the Appellant.

Following those claims, the trial Area Court No.3 Katsina, Katsina State decided to take the issue bordering on the child’s paternity while stepping aside the other claims. The Court summoned the plaintiff’s mother and took her evidence. The plaintiff later produced one witness to confirm to the Court the actual date of her delivery. The defendant, it would appear was reluctant in calling any witness to confirm the date of plaintiff’s delivery. After having considered the statement made by the parties and of the single witness, the trial Area Court Judge delivered the judgment wherein he gave paternity of the baby to the defendant. He was dissatisfied and lodged an appeal before the Upper Area Court 1, Katsina (hereinafter referred to as “U.A.C”). After reviewing the evidence of witness at the trial Court, the UAC Judge allowed the appellant to call his witness he had claimed the trial Court did not afford him opportunity to do so. The learned Judge of the UAC however, held that the Appellant consummated or was presumed to have consummated the marriage and that the Islamic principle of “LIAN”; was not applicable in the circumstance of the case.

Aggrieved, the Appellant further appealed to Sharia Court of Appeal, Katsina. After hearing the appeal and carrying out further investigations, the Court affirmed the decision of the Upper Area Court.

On further appeal to the Court of Appeal, it also affirmed the decision of the Sharia Court of Appeal and dismissed the appellant’s appeal. It is the dismissal of this appeal that has necessitated the present appeal to this Court filling his Notice of Appeal on 23/1/2003, which contained 6 grounds of appeal. A single issue raised by the Appellant encompassing the six grounds of appeal in his brief of argument dated 3rd but filed on 4th May, 2011, is as follows:-

‘WHETHER the Court below was justified in granting paternity of the child in issue to the Appellant notwithstanding the fact that the Marriage between the parties hereto was void-ab-initio.”

In her brief of argument dated 7th and filed on 7th October, 2011, the Respondent adopts the lone issue as formulated by the Appellant for determination of the appeal.

On 17/10/2011, the appeal was heard. Learned Counsel having identified the Appellant’s brief of argument urged this Court to allow the appeal and set aside the decision of the Court below. In the brief learned Counsel for the Appellant, TAJUDDEEN O. LADOJA Esq., relied on the medical examination conducted on the Respondent on 15/9/1991, showing that she was 20-22 weeks pregnant. He contended therefore that as at the time the medical examination was conducted the marriage contracted by the parties was less than 50 days old; and that by simple arithmetic, a pregnancy which was 20-20 weeks between 140-154 days as at 15th February, 1991- certainly pre-dated the 20th day of December, 1990 when the marriage was contracted.

Against this background, relying on a book called BIDAYATUL MUJTAHID Vol. 2 at page 59 learned Counsel has submitted that a contract of marriage is like a contract of sale, if there exists a vitiating element, therein, it is rendered void. Relying further on chapter 2 verse 253 of THE HOLY QURAN and IN FATHULRAHEEM Vol.2 page 44 and supplying both the Arabic and English transliteration therein, learned Counsel submitted that it is forbidden to contract a marriage when a woman is carrying pregnancy of another man. That the marriage between the Appellant and the Respondent is clearly susceptible to outright annulment and it is not subject to rectification because its voidability touches and concerns the marriage contract itself, and such nullification must either be done before or after consummation. Further reference was made to IHKAMUL AHKAM, ALA TUHFATUL HUKKAM page 98, on this point.

It is further submitted that since the Respondent’s pregnancy pre-dated her marriage with the Appellant she was not free to have contracted a valid marriage with the Appellant and in the circumstances therefore her marriage is void ab-initio and of no legal consequences. Reliance was placed on the following Sharia authorities:

1. FATHUL JAWAD vol. 1 page 242.
2. FATHHUL RAHEEM (supra) at page 47.
3. THAMARUDDANI (commentary) on RISALAT page 90 and 444,
4. DASUKI ON MUKHTASAR (chapter on IDDAH).
5. BIDAYATUL MUJTAHID PAGE 117.

On the principle of Alwalad Lifirash learned Counsel has submitted that, the presumption of legitimacy is applicable only where there is no proof to the contrary and the existence of valid marriage; but in the absence of a legal marriage the principal of presumption of legitimacy will not be applied and relied upon. That if there exists a legal evidence to displace the presumption, the principle would not apply and the child would be attached to the mother.

Submitting further learned Counsel conceded that where there is a valid marriage and there is dispute on whether or not a husband had sexual intercourse with his wife, the assertion of the wife that it took place, would be relied upon. Referred to JAWAHIRUL IKLIL on MUKHTASAR KHALIL page 308. It is submitted that medical report was not meant to establish paternity but the age of the pregnancy. Learned Counsel contended that even if the opinion of a psychologist is not accepted to establish paternity, Islamic jurisprudence is not against expert opinion on period of gestation. He relied on TABSIRATUL HUKAM Vol..2 page 99-101 and IHKAMUL AHKAM (supra) at page 118.

In the premises of the foregoing submissions the learned Counsel has urged this Court to reverse the concurrent findings of the appellate Courts. In her submission, the Respondent’s counsel, has likened the Islamic marriage contract to the simple law of contract in which the essential elements must be met to make it valid. Learned Counsel has submitted that there was no proof of the fact that the marriage contracted between the parties was void as a result of the Respondent’s pregnancy.