Salamatu S. Wapanda V. Abubakar Suleiman Wapanda (2006)

LawGlobal-Hub Lead Judgment Report

I. T. MUHAMMAD, J.C.A.

Salamatu Suleiman Wapanda as the petitioner filed a petition for divorce against her husband, Abubakar Suleiman Wapanda as the respondent, at the Upper Area Court No. 1 Yola in Adamawa State.

The particulars of the petition read as follows:

“1. The petitioner and the respondent, both residing and working in Jimeta – Yola contracted an Islamic marriage at Government Reservation Area, Guyuk on October 21st 1978.

2. The parties lived together as husband and wife with their 4 children up till September, 1996 when the petitioner was forced to leave the matrimonial home by the conduct of the respondent.
3. That the respondent has bluntly refused to grant the petitioner a divorce which she had repeatedly requested from him.
4. The petitioner now petitions the court to dissolve her marriage with the respondent on the ground that in view of the said respondent to her, (sic) she can no longer keep and live with him within the bounds of Allah.”

The respondent was served with the petition and he denied liability. One witness testified, i.e. the petitioner herself. Addresses were taken by the trial court from the learned counsel for the respective parties.

The trial Judge, in his judgment dissolved the marriage between the parties below.

Dissatisfied, the respondent appealed to the Sharia Court of Appeal Yola, Adamawa State (lower court). After considering the grounds of appeal and further submissions made before them by the parties, the learned Kadis of the lower court allowed the appeal and set aside the judgment of the trial court. In its place, the lower court reinstated the marriage of the parties with an order that the respondent in the appeal to return to the appellant’s house as soon as possible. The respondent was however granted liberty to sue the appellant “on any relevant issue before any competent court which will hear the parties in accordance with the procedure of Sharia.

The respondent before the lower court was dissatisfied with the decision of that court and now appealed to this court on six grounds of appeal.

In this court, the parties filed and exchanged briefs of argument. Learned counsel for the appellant formulated four issues for this court to determine. These are as follows:

“1. Whether the Sharia Court of Appeal Yola which allowed the respondent’s ground of appeal No. 1 before it of referring the parties for settlement was right in failing to execute the findings and recommendations of the arbitration panel dated the 5/10/98.

2. Whether having regard to the findings and recommendations of the arbitration panel dated the 5/10/98 which was not set aside by the Sharia Court of Appeal, Yola same was right in ordering the repetition of the exercise of the said arbitration panel dated 5/10/98 on the ground of the withdrawal of the respondent’s representative after the submission of the report by the arbitrators and the objection of same by the respondent.
3. Was the Sharia Court of Appeal, Yola right to order the appellant to sue the respondent on any relevant issue before a competent court by indicating clearly her complain (sic) before the court when the Sharia Court of Appeal Yola itself understood that the parties could not settle due to lack of cooperation from them despite setting up two arbitration panels.
4. Whether having regard to the circumstance of this case the Sharia Court of Appeal Yola was right to set aside the judgment of the trial court and reinstate the marriage of the appellant and the respondent.”

In his brief which was deemed filed and served on 16/05/06, learned counsel for the respondent adopted the issues for determination formulated by the appellant.

In his submissions on issue No. 1 learned counsel for the appellant stated that the Sharia Court of Appeal allowed ground 1 of the respondent’s appeal when the Court on 14/8/98 appointed the representative of the appellant Alhaji Tanimu Baba and the respondent Alhaji Bashari Yahaya Hong to serve as arbitrators (Hakamani) with the aim of settling/reconciling the parties to the marriage. The court explained to the arbitrators their duties and responsibilities, i.e. to be just on their deliberations and not merely to advance the cause of the party they represent.

The Hakamani invited the appellant and the respondent with the purpose of ironing out the differences and or disharmony. In the cause of the arbitration each of the spouses indicated that he/she did not love the other. The arbitrators were not able to reconcile the parties. They submitted their report in writing to the court on 5/10/98. The arbitrators recommended divorce and gave the respondent freedom to claim his rights in all its ramifications.

Learned counsel argued further that the decision of the arbitration panel must be executed and the court had no power to give a contrary decision. He referred to page 43 ratio 451 of Tahufatul Hakkami (English translation by Bello Muhammed Daura); page 41 of Supremacy of Islamic Law; Fadimatu Muhammed v. Mahammadu Buba Majo: Appeal No. CA/J/205/95. Learned counsel submitted finally on this issue that the lower court was in error when it failed to execute the decision of the Arbitration Panel dated 5/10/98 and instead reinstated the marriage of the appellant and respondent. He urged us to hold that the reinstatement of the marriage by the lower court is improper and that this court should execute the decision arrived at by the two arbiters in favour of the appellant.