Aishetu Mayaki & Anor V. Alhaji Nda (1992)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Kwara State Sharia Court of Appeal, Ilorin delivered on 21/11/89. The facts leading to this appeal emanated from the Bacita Area Court where the respondent herein sued the 1st appellant claiming the paternity of her twins. On appeal, the Upper Area Court Ilorin ordered a retrial before the Lafiagi Area Court. At the retrial before the Lafiagi Area Court, the Respondent herein as plaintiff called 3 witnesses while the appellant herein called one witness now the 2nd appellant. It will be recalled that before this suit, the 1st appellant had sued the respondent for divorce at the Bacita Area Court which was granted by the court on 28/2/84. A medical report was issued by Shanga Medical Centre on 30/4/84 (i.e during the period of Iddah). Following the divorce, the 1st appellant contracted a new marriage with the 2nd appellant on 3/5/84 and the 1st appellant gave birth to twins on 26/10/84. (Vide Exhibit D). Thus, from the date of divorce to the date of 1st appellant’s marriage to the 2nd appellant was 64 days or 9 weeks or 2 months four days. Similarly from the date of the 2nd marriage to the delivery of the twins was 176 days or 25 weeks and one day while from the date of divorce to the delivery of the twins had 240 days or 34 weeks 2 days between them.

It suffices to say that at the trial of the disputed paternity claim at Area Court Grade II Lafiagi, the plaintiff/respondent called 3 unimpeachable witnesses to prove his claim while the1st appellant called one impeachable witness (i.e the 2nd respondent) to prove her claim. The 2nd appellant did not call any witness. At the end of the trial, the Lafiagi area court presided over by Alhaji Mohammed Dangana awarded the twins to the Respondent. Dissatisfied with this decision, the appellant appealed to the Kwara State Sharia Court of Appeal which dismissed the appeal and affirmed the judgment of the trial Lafiagi Area Court. Again dissatisfied with the Sharia Court of Appeal judgment, the appellant has appealed to this court on four grounds including the omnibus ground. From these four grounds, the appellant has formulated the following 4 issues which agree with those of the respondent for the determination of this court viz:

(1) Was it right for the Lafiagi Area Court to reject the Medical Report of the Maternity Centre (Exhibits C and H)?

(2) Was it right for both the Area Court Lafiagi and Kwara State Sharia Court of Appeal, Ilorin to hold that the marriage of the defendant/first appellant to the plaintiff/respondent terminated only 5 months before delivery?

(3) Was the validity of the marriage of the defendant/first appellant to the plaintiff/respondent an issue and properly addressed before the Lafiagi Area Coun and the Kwara State Sharia Court of Appeal, Ilorin?

(4) In view of the facts that:

(i) from the date the defendant/first appellant saw blood in the house of the plaintiff/respondent (which remained for 16 days) to the date of divorce (28th February, 1984) to the date of delivery was 286 days (ie 16 days + 30 days + 64 days +176 days) OR 40 weeks and 6 days OR 9 months 16 days:

(ii) from the date the Maternity Centre Shonga examined the first appellant to the date of delivery was 6 months less one day;

(iii) from the date of the second marriage of the defendant/first appellant (to the second appellant) to the date of delivery was 176 days or 6 months less 3 days.

was it right for both the Area Court Lafiagi and the Kwara State Sharia Court of Appeal to say that the marriage was terminated 5 months before delivery?

The respondent added one other issue viz:

(iv) Whether the parties to a proceeding are competent witnesses in Islamic law procedure?

However, before dealing with those issues, it is necessary to observe that the respondent had filed a preliminary objection on the same day he filed the respondent’s brief touching inter alia, on the jurisdiction of this court to entertain the present appeal. Since jurisdiction deals with the basis of adjudication I shall first deal with this objection, the outcome of which will determine whether or not to consider the substantive appeal. In this regard, it is pertinent to observe that the preliminary objection raised the following issues for the determination of this court.