Alhaji Modu Maiwake V. Goni Modu & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

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

The original statement of claim stated by the plaintiff, who is the appellant before this court, against the defendants who are respondents herein is reproduced hereunder:

“I Alhaji Modu Maiwake, I am suing Goni Modu and Alhaji Yahaya to collect my son from them. There is my wife called Zara which Alhaji Yahaya is her Wali (representative). We were together with Zara she got pregnant, the pregnancy and I divorced her then Goni Modu married her after marrying her with five (5) months twenty eight (28) days remain two (2) days to complete six (6) months she delivered. I got the information and I went to her Wali (representative) that is Alhaji Yahaya I told him that I learned that Zara has delivered have you count the days, he said no he didn’t.

Then I asked him whether you have asked them he said let me go and asked them in the house, then he stood up and entered the house and he asked them and returned and told me that today is 6 months 10 days with the marriage before she delivered. Then I asked Alhaji Yahaya is there any child of 6 months 10 days in this world? He said the matter is above his capacity. From there I asked him, you go and inform Yakingi how about the child been delivered then he said he heard it I stood up and left, from then up to 5 days nobody went to me, then I went to Yakingi. Yakingi have you checked? Then she answered me she didn’t go then I told her you go and do what you want to do if it is going to be good you assist then returned to my house, then they gave it to Goni Modu and he performed the naming ceremony, that is why I sued them I want them to give me my child between Goni Modu, Alhaji Yahaya and Zara, that is my claim”.

Both 1st and 2nd defendants denied the claim. Zara said she had an overdue pregnancy. That when she was in Alhaji Modu’s house (appellant’s house) she was pregnant but could not deliver.

She said even her marriage guardian (Wali) was aware as she informed him of that. She further said that she was divorced by the appellant and she contracted marriage with the respondent. She delivered and he (respondent) performed naming ceremony. Zara stated further that she was sick and was on bed. Her mother went to her and the respondent asked her that her daughter was pregnant when she married him. The mother answered in the positive.

Respondent requested the mother to go and tell the appellant to return (pay) respondents expenses on the marriage and the naming ceremony as he did not know.

Witnesses were called by the parties. At the end of hearing, the trial Upper Area Court gave paternity of the baby girl born by Zara to her former husband i.e. the plaintiff.

Dissatisfied with the judgment, the defendants appealed to the Sharia Court of Appeal, Yobe sitting at Damaturu, (lower court).

The lower court nullified (set aside) the decision of the trial court and gave paternity of the child to Goni Modu i.e. the 1st respondent.

The respondent at the lower court, and now appellant herein, was unhappy with the lower court’s decision and he filed his appeal to this court. Three grounds of appeal were set out in the notice of appeal.

In this court the appellant was represented by a counsel who filed his brief of arguments. He set out the following three issues for our determination:-

“1. Whether the court below was right in setting aside the judgment of the trial Upper Area Court, Bursari in view Sura Ahqaf verse 15.

2. Whether from the records of the trial court, there were separate witness (evidence) given by Zara to wan-ant the court below prefer the first against the second.
3. Whether from the evidence available at the trial court, the court below was right to reverse the decision of the trial court.”

The respondents had no counsel to represent them throughout the proceedings in this court.