Alhaji Ali Ngbdobe V. Hajja Falmata Dubrare (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A. 

This is an appeal against the decision of the Borno State Sharia Court of Appeal delivered on 5/7/94 wherein the court allowed the appeal by the present respondent against the earlier decision of the Upper Area Court No. 1 Maiduguri dated 26/1/93.

The facts of this case briefly put were as follows: The respondent herein as plaintiff sued the appellant herein as defendant claiming as per page 1 of the records thus:

“I am instituting an action against him because I am seeking for my right of one eight (Summuni) portion out what was left by my late husband, Alhaji Mustafa Wardama which included house and other property from his younger brother, Alhaji Ali because he called us altogether before the village Head and made some reconciliation but thereafter he said that he disagreed with the reconciliation and therefore I too disagree and let the Court investigate and give me my dues. My husband left behind a house with twelve (12) rooms and five other vestibules (Zaura) at the back and two rooms, and a vestibule and a kitchen and a toilet which we have been living with, and his house, some big woven cloths (gaba kura kura) and some other property in the possession of Alh. Confronted by the Court with this claim of the plaintiff/respondent, the defendant/appellant told the court that he denied the plaintif/1st respondent her right of inheritance in the estate of the appellant’s brother because she (the respondent) was the one who told him that there had not been sexual intercourse between her and the appellant’s brother for about six years before his death and hence she said she doubted whether a marriage existed between them. The respondent on being confronted with this statement of the appellant denied stating that what she told the appellant was that her husband had problems affecting his manhood which made him sexually weak. She told the appellant that she stayed with the husband inspite of this his illness and that if it were girls of nowadays they would not stay with the husband and they would have claimed that there was no marriage and might have left for their homes. She stated that was what she discussed with the appellant. She denied ever telling him that there was no marriage between her and her deceased husband. However, the appellant told the court that he would not give the respondent her share of inheritance except if the court so orders or if she could prove the existence of the marriage between them. When asked whether the appellant had witnesses to confirm the conversation, the appellant answered in the negative saying that it was a one to one discussion and not made before any other person apart from both of them. The court asked the respondent whether she could swear on what she said she discussed with the appellant, she said she was ready to swear that she did not tell the appellant that there was no marriage between her and her late husband Alhaji Mustafa. The plaintiff/respondent also informed the court that the appellant had earlier invited her and her representatives and his own representatives too in the public to assess and evaluate the estate of her late husband for distribution to give her own share. She said they gave her half of the house with 5 rooms and some other property as her share. She said they only had a dispute over a right of way. She then queried why did the appellant do that when he knew there was no marriage between her and his late brother. She said she was prepared to swear that such reconciliation had taken place between the parties in the presence of certain people. The appellant confirmed that they were in court due to the disagreement over that distribution. He asked the respondent to swear on the reconciliation. The respondent urged the court to call the witnesses present at the distribution which the defendant/appellant did not object to. Consequently, the plaintiff/respondent called the following witnesses – Modu Kontoba, Alhaji Buku Gaji, Goni Mustafa, Goni Jalami, Mal Mustafa Mustaba, Alhaji Ali (Retired Policeman), Mal Kagu, Ali Kachallaas P.W.s 1, 2, 3, 4, 5, 6, 7, & 8 respectively. These witnesses confirmed that they were invited by the parties for distribution of the estate of the late husband of the respondent, Alhaji Mustafa Wardama when a distribution was expected. The estate was divided into 4 and the respondent was given a house with 2 rooms while the appellant was given the remaining to share with his brother. The witness also spoke of money produced by the appellant for distribution in addition to farmland and plot distributed among the parties themselves. The witnesses were properly cross-examined by the appellant. After all the evidence the court gave oath to the respondent to swear concerning the discussion with the appellant upon which the appellant said he would give her her share of the inheritance. The respondent declined to take the oath. The trial court, based on this refusal to swear on the statement allegedly made to the appellant, dismissed the respondent’s suit and denied her a right of inheritance.

Dissatisfied with this decision of the trial court the respondent appealed to the Upper Area Court No. 1 Maiduguri. The court went further through the grounds of appeal where the respondent admitted that she had told the appellant what she was alleged to have told him jokingly. The noted court that his 8 witnesses called by the respondent at the trial area court none made any statement on marriage as they all testified on distribution. The court noted further that the respondent refused to swear on the Quran that she had not told the appellant that there was no marriage between her and her deceased husband. She also refused to make the oath before the court but admitted discussing with the appellant jokingly. Based on the foregoing, the Upper Area Court (hereinafter referred to as the Upper Area Court) dismissed the appeal and affirmed the decision of the trial Area Court Again, dissatisfied with this decision of the Upper Area Court, the respondent appealed to the Borno State Sharia Court of Appeal sitting in Maiduguri (hereinafter referred to as the Sharia Court of Appeal) where after going through the records as well as the arguments of the parties, the Sharia Court of Appeal allowed the respondent’s appeal and gave her a right of share (1/8) in the estate of her deceased husband, Alhaji Mustafa Wardama.

Dissatisfied with this decision of the Sharia Court of Appeal, the defendant/appellant (hereinafter referred to as the appellant) appealed to this Honourable Court on five grounds. From the five grounds of appeal, the appellant herein has formulated only one issue, viz:

“The appellant respectfully submits that there is only one principal issue for determination, that is, whether the deceased Alhaji Mustapha Wardima actually divorced the respondent before his death. The answer to this will undoubtedly determine whether the respondent could be entitled to the 1/8 portion of her share in the estate of the said deceased.

Learned counsel to the appellant filed the appellant’s brief of argument while the respondent who was not represented by counsel did not file a respondent’s brief. On 8/7/97 when this appeal came up for hearing before us, Mr. B. Adamu held Mr. J.K. Gadzam’s brief for the appellant and adopted the appellant’s brief. The Registrar informed the court and showed the affidavit of service to confirm that the respondent was served with the appellant’s brief on 16/8/95. The Hearing Notice for hearing of the appeal slated for 8/7/97 was also served on the respondent on 13/6/97. Consequently, the court held that since the respondent had been duly served with the appellant’s brief since 16/8/95 and the Hearing Notice for the hearing date of 8/7/97, the appeal, pursuant to Order 6 Rule 9E of the Court of Appeal Rules is deemed argued. The respondent is deemed to have adopted her case as presented at the Yerwa Civil Area Court I, Upper Area Court I Maiduguri and the Borno State Sharia Court of Appeal Maiduguri as contained in the records of proceedings. I have reviewed the facts of this case in great detail to bring out the cogent issues since the respondent was not represented before us. Be that as it may, I have considered the submissions made by learned counsel to the appellant and the argument of the respondent in reply vis-a-vis the records and the prevailing law. It is intended to give my views on these submissions. In my view the whole argument boils down to whether or not there was a subsisting marriage between the respondent and her late husband at the time of his demise to ground her a right of inheritance in the estate of the deceased husband.

On this principal issue, learned counsel to the appellant Mr. B. Adamu holding Mr. J. K. Gadjam’s brief submitted by way of summary on page 10 of the appellant’s brief that since the respondent had refused to swear to an oath that she did not tell the appellant that her husband had divorced her, the court should allow the appeal, set aside the judgment of the Sharia Court of Appeal and confirm the judgment of the trial Area Court and the Upper Area Court or in the alternative the Court of Appeal should order a retrial. As reviewed supra the case of the respondent is that since she had denied saying her husband had divorced her she needs not swear to an oath of rebuttal. As reiterated supra, I have considered the submissions of learned counsel to the appellant as well as the case of the respondent in the 3 lower courts on this basic issue. In my view the whole argument boils down to defining on whom lies the burden of proof that a husband has divorced his wife.

This poser had been resolved by the Sharia appellate bench of this court to the effect that in Islamic Law, the burden of proof that a husband has divorced his wife rests on the wife or her representatives claiming such a divorce, if she or her representatives fails to prove it, the case should be dismissed. However, where she or her representatives adduce evidence of one male unimpeachable witness or two female unimpeachable witnesses, the husband shall be called upon to swear to oath of rebuttal thus refuting the wife’s claim. See MAYYARA – commentary on Tuhfa p.48 where the learned author said:

“But if a wife complained that her husband had divorced her, the husband shall not be called upon to take the oath of rebuttal of the wife’s allegation except where she is able to adduce the evidence of one unimpeachable witness or that of two unimpeachable witnesses. In this regard the husband will be called upon to take oath of rebuttal in respect of the only witness. The wife shall be separated from the husband until he has taken the oath. If he persists in his refusal to take the oath, the court shall on the spot pronounce divorce in favour of the wife and will start counting the period of her idda from the date of that pronouncement.”

See Ruxton on Maliki law para. 1579 page 3018, see also the judgment of this court in Maitakalmi v. Kududdafawa in unreported Appeal No. FCA/K/435/83 delivered on 6/12/83 and Jibo Yari v. Miruf Mikaila (1961-1989) SLR 223, (1986) 5 NWLR (Pt. 46) 1064 all of which adopted the above statement of the Sharia. The most important thing to note is that this procedure had not been followed by both trial Area Court and the Upper Area Court. This is because it was the appellant who gave them the information about the “divorce” when the estate of the respondent’s deceased husband was being distributed for inheritance. The appellant admitted before the Sharia Court of Appeal that he did not hear the issue of divorce from his deceased brother the husband nor from any other person apart from the respondent. The respondent denied this allegation in the three lower courts. Since under Islamic Law as shown supra, the burden of proof that a husband has divorced his wife rests on the wife or her representatives claiming such a divorce, the marriage in the instant case can be presumed to be existing since the wife denies the existence of any such divorce at the time of the husband’s death. The appellant did not seek nor confirm such information from the late husband who was also his brother during his lifetime. I am in agreement with the Sharia Court of Appeal that there was no proof of divorce or break in the marriage between the respondent and the deceased husband in any of the 3 lower courts as the procedure for such proof laid down in the above stated authorities was not followed. With these observations, I am in full agreement with the Sharia Court of Appeal that the marriage between the respondent and the deceased was subsisting at the time of his death and as such the respondent should be given her right of inheritance from the property of the deceased, Alhaji Mustafa Wardama. (i.e. 1/8 of the net estate)

In sum, the appeal fails and it is dismissed. The judgment of the Sharia Court of Appeal which conferred a right of inheritance from the property of the deceased Alhaji Mustafa Wardama is hereby approved.

Other Citations: (1997)LCN/0265(CA)