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.
- 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.
- 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.
On the hearing date of this appeal, the parties were absent and unrepresented. The bailiff of this court produced proof of service on the parties especially the appellant’s counsel who was served on 04/05/06.
As the appellant’s counsel filed his brief of argument and the respondents did not, this court took the appeal for judgment under Order 6 rule 10 of the Court of Appeal Rules, 2002.
In his brief, learned counsel for the appellant proffered the following arguments; that the court below was not right in setting aside the judgment of the trial court in view of the provisions of Suratul Ahqaf verse 15 which provides for the minimum period of gestation up to weaning the child to be 30 months whereas the matter and the issue before the trial coul1 was an issue of over due pregnancy which Zara claimed to have married the respondent despite the fact that Zara had fully observed her 3 complete menstrual periods.
Learned counsel argued further that the testimony or declaration of Zara on page 3 lines 28-45, page 4 lines 1- 16 and 35-40 are in compliance with what Allah has said in Sura 11 verse 228 of the Holy Qur’an. Sura Ahqaf verse 15 does not cover instances of overdue pregnancy it is rather limited to the minimum gestation and weaning period. Sharia, he submitted further, recognizes a situation where even if a woman is pregnant, blood could still flow from her.
He cited Almuwatta by Imam Malik bin Anas, Vol. 11 page 292 No. (1450) 23 – (1451) 24.
On issue No.2, learned counsel submitted that from the records of the trial court and the court below, the testimony of Zara is as contained on pages 3, 4 to 5. Nowhere was there further or additional evidence given by her, but the lower court held that Zara gave 2 witnesses (evidence) upon which the lower court preferred the first one to the second. Zara has given (one) evidence before the trial court as well as her oath. He argued that the lower court speculated on the issue of Zara’s testimony. He cited the case of Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 at 627 to 628.
Learned counsel for the appellant argued on issue No.3 that the evidence adduced in the trial court if properly evaluated is more weighty than that adduced on the part of the respondent/defendants.
The testimonies of PWs 1, 2 and 3 were in conformity with the appellant’s claim and the declaration as well as the oath of Zara.
The trial court was right in entering judgment for the appellant while the lower court was wrong to have reversed the judgment of the trial court. Learned counsel urged this court to allow the appeal and reverse the decision of the lower court.
As no briefs were filed by the respondents, each was deemed to have adopted the submissions he made at the lower courts of Yobe State as contained in the printed record of proceedings placed before this court.
In my consideration of this appeal, I will treat issues 1 and 3 of the appellant’s issues together and issue No.2 separately. I will start with issue No.2.
I have carefully considered the contents of pages 3-5 of the record of appeal as it pertains to Zara. What is recorded in parts, is as follows:
“C/Dft III- did you hear? What can you say?
Ans – I heard it but actually I have an overdue pregnancy with me…”
This in my view is not a testimony. It is a response or better, statement of defence by Zara who was referred to as defendant III. It is trite law in Sharia that a party to a proceeding is not a competent witness.
All he says is tantamount to explanation to his statement of claim or defence as the case may be. See Mafalaku v. Alamu (1961 – 1989) 1 SLRN 164.Now where I capture the use of the word testimony in respect of Zara, from the lower court’s proceedings is as follows:
“What this court observed is that initially when Goni Modu was about to marry Zara she stated that she is not pregnant and she has completed her waiting period it was based on her testimony that it was agreed and a marriage was contracted between her and Goni Modu.
It is on these types of testimony that the respondent counsel brought his reasons (authorities) from the book of Islamic law…”
Reading the con of the above excerpt, it is clear that the use of the word testimony was a misnomer. It could only refer to a statement of defence credited to the 3rd defendant i.e. Zara.
It is my view that since the trial court did not rely on that evidence taken from a party, it did not occasion any miscarriage of justice to any of the parties. Such a misnomer can be ignored.
Turning to issues 1 and 3, it is pertinent to state the general law in respect of pregnancies. The author of the Tuhfah states:
Translation:
“The longest period of gestation is five year and, six months is the shortest.”
Jurists say that from the consummation of the marriage to a period of six months (some jurists say even with five days less) if pregnancy is delivered in wedlock, its paternity must be attributed to the husband. See Ihkamul Ahkami page 134; AI-Mayyarah, pages 256 257.
The mechanism relied upon to determine the minimum period of gestation is a deduction from two verses of the Holy Qur’an from two chapters:
(1) in chapter 46 verse] 5, Allah says:
“And we have enjoined on man to be dutiful and kind to his parents. His mother bears him with hardship. And she brings him forth with hardship, and the bearing of him and the weaning of him is thirty months.”
(2) In Qur’an 31:14, Allah states:
“The mothers shall give suck to their children for two whole years.”
Thus, if by simple arithmetic, 24 months (period of suckling) as in chapter 31: 14, is subtracted from 30 months (as in chapter 46: 15), what remains is 6 months which represent the minimum period of gestation.
Translation:
“Thus if the period of suckling alone is two complete years, then the period of gestation (pregnancy) is six months, which remains after weaning from slicking”.
(Al-Mayyarah page 257)
As for the longest period of gestation, some jurist’s are of the view that is four years, some say it is five years and others say it is seven years. See Al-Mayyarah Vol. 1 page 256; Badrul Zawjaini, pages 232 -233.
The issue under consideration in this appeal is where the lady is in doubt as to what she feels in her womb. Is it a human foetus or not? It has been stated in Al-Mayyarah:
Translation:
Know that a woman who observes Iddah (waiting period) due to death of husband or due to divorce simpliciter and doubt occurs to her whether she is pregnant or not, then, (f the cause of the doubt is delay in observing menstruational period at its usual time, then she will wait for nine months for cleansing herself (Istibra) and then (she will wait) for three months (f there is no cause for the doubt. But where the cause of the delay in observing the menstruational period is caused as a result of suckling or sickness, then she will observe her periods through menstrual circles (aqra’u). This is in accordance with the famous view. It is said (again) that she (becomes ripe for marriage) after the passage of one year even where the cause of the doubt is some movement in her womb. Ibn Al Hajib said: a woman who entertains doubt (as to her being pregnant) through movement in the womb shall not re-marry until after the expiration of the longest period of gestation which is five years according to the famous view. It is also reported to be four years and seven years. Ashhab said: She will not be ripe for a marriage (forever) until when it is clear that she is free from pregnancy. Al Khatabu said while commenting on that she should wait, means that where she doubts (the pregnancy) whether it should be five or four years is disputable, means if the five or four years passed away as portrayed by the two views, then she is ripe for marriage even if the doubt (as to the existence of the pregnancy) continues. (The author of the Mudawwana) said: in his Mudawwana: the woman who is in doubt what is in her womb shall not many until when there exists no doubt or after (the passage) of five years. Abu Hassan said: where the woman says. “I remain in my doubt as the (passage of) the period of five years (longest gestation period) has not brought to an end the pregnancy: Ibn Abdul Salam said: it is the same (position) whether the waiting period is for divorce simpliciter or for death. This is where the doubt as to the pregnancy is caused by the movement in the womb. Is it movement of a human foetus or movement of air? But where size is certain that it is a human foetus then she shall not be free to re-marry (till after delivery) and where the foetus dies in her womb she shall be free to re-marry only after it has come out.
Thus, in a summary form, where doubt occurs as to the existence of pregnancy after divorce or death of husband, the following views are held by jurists:
(1) The woman shall wait for a period of nine months for ‘JSTIBRA’ (cleaning herself from any pregnancy) where she has been divorced and she experiences delay in observing her waiting (iddah) period.
(2) She shall wait for 3 months where there is no cause for the doubt (i.e. where 110 pregnancy at all is suspected and she is the type who observes her iddah by month).
(3) Where the cause of the delay in observing the Iddah is as a result of suckling or some sickness, then she shall observe the three menstrual circles (aqra ‘u/quru’)
(4) Where there is movement in the womb, she shall not remarry until after the expiration of the longest period of gestation which is five years or where delivery is earlier.
(5) Where the foetus dies in her womb, she cannot re-marry until after the dead foetus comes out from her womb.
Now, let us apply the facts of the appeal on hand to the above laid down principles of the law.
(i) There is no dispute that Zara was divorced by the appellant. Page 1 of the record referred:-
”I Alhqji Modu Maiwake … we were together with Zara she got pregnant, the pregnancy and I divorced her. I divorced her three times” (pages 1 & 4 of the record)
The 2nd defendant stated as well:-
“Alhqji Modu Maiwake divorced Zara in the month of Zulkhida 27th …”
The 3rd defendant, who is Zara, the divorced wife stated:
“From then we couldn’t remain together and Alhaji Modu divorced me. He divorced me three times.”
(pages 3 and 4 of the record)
(ii) In his statement of claim before the trial court, the appellant claimed that Zara got pregnant while they were still together as husband and wife. He said on page 4 that it was Zara who told him that she was pregnant before separation.
(iii) Zara confirmed that she was pregnant while in Alhaji Modu’s (appellants) house but she could not deliver.
(iv) 1st defendant, i.e. Goni Modu, stated that he married Zara, 3rd defendant after she confirmed to him that she had completed observing her Idda (waiting period) and that she was not pregnant (pages 1-2 of the record).
(v) 3rd defendant, Zara stated in an answer to a question put to her by counsel to the plaintiff as follows:-
“I observe three menstruation period” (Page 4 of the record)
(vi) Zara, 3rd defendant when asked why she contracted marriage since she knew she had an overdue pregnancy, she replied:-
“I deed (did) so just because if I say I have an overdue pregnancy I cannot get married. I am too young. ”
(vii) That Zara informed her senior sister Falmata and M. Usman and her senior sister Meramu of her pregnancy before her new marriage to 1st defendant.
(viii) The plaintiff/appellant never challenged Zara or her parents that she was pregnant immediately she was divorced by him. It was after she contracted her marriage with 1st defendant and she delivered then he posed his challenge. (see page 1of the record)
“…. And I divorced he r then Goni Mudo married her after marrying her (sic) 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”
2nd defendant the Wali to Zara confirmed that appellant said there was nothing between them.
Some of the facts synopsized above contradict some. The only way out was to call evidence. All the witnesses called by the plaintiff were told by Zara that she had an overdue pregnancy. There were 4 witnesses for the plaintiff. Two males and two females. The two females were sisters to Zara. None of the male witnesses could be believed by the trial court. It however relied on the evidence of the two sisters of Zara to arrive at its decision. Although the lower court did not say anything on the evidence generally, this court has a duty to do what the lower court failed to do. It is clear that none of the witnesses could be believed. All of them relied on hearsay. Again, the two female witnesses were senior sisters to Zara. They were never shown to be expert in pregnancy matters. Even if they are, the blood relationship between them and Zara could not allow their testimonies to stand except where they were shown to be Mubarrazatani) i.e. (both of them) excelled in character more than others. Thus, their evidence goes to a naught. The kind of evidence required by law in the establishment of movement in a woman’s womb which is suspected to be a pregnancy is set out by the Sharia in clear terms. Thus, it is stated in Ihkamul Ahkami (Hamish):-
Translation:
Where women are in doubt as to the movement in the womb of a lady observing Idda (waiting period). Is it movement of a child or movement of air and the doubt continues then it is said she shall wait for five years (as the famous view): It is said four years and it is seven. Thereafter, it is lawful for her to contract a marriage in spite of the lingering doubt. But where the women who are experts confirm that the movement is that of a child, she cannot get out of Iddah (waiting period) until she delivered it even if it will be throughout her lifetime.
(See: Ihkamul Ahkami page 134).
Thus, in matters of establishment of pregnancy (which refuses to show itself clearly) the service of expel1 women (advanced in age and experienced) is required. See further: the book of Badaru Alzawjaini Wa Nafahatul Harmaini by Kashnawi pages 229 to 230.
Thus, in essence, the plaintiff had no evidence to prove his claims.
When a plaintiff has no evidence to establish his claim, the claim is dismissed straight away.
Translation:
It is the plaintiff that is required to establish his claim by evidence in all circumstances.
(See; Almayyara, vol. 1 page 19)
Thus, where there is no evidence to prove a claim the law requires that the claim be dismissed.
The 3rd point is that Zara as a defendant was asked by the trial court to swear to a complimentary oath which she did. I believe there was no basis for that oath. This is because; in a matrimonial case, except where monetary issue is involved, or something relating thereto, oath is not offered to a party. See: Tabsiratul Hukkamli vol. 1 page 228. The oath subscribed to by the 3rd defendant, Zara, has no legal effect whatsoever.
The decision of the trial court was not based on any legal authority. The authorities relied upon by that court were wrongly applied.
It is not in dispute that Zara got another marriage to the 1st defendant after she finished observing her idda period. This is clear from the answer given by Zara on a question put to her by the counsel F to the plaintiff. The dialogue before the trial court went as follows;
“Counsel: Have you observed three menstruation before you got married?
Ans: I observed three menstruation periods.
Counsel: why did you contracted (sic) marriage since you know that you have an overdue pregnancy?
Ans – I deed (sic) so just because if I say I have an overdue pregnancy I can’t get married I am too young”
Thus, there is a presumption of legal marriage between Goni Modu and Zara. The trite position of the law is that where there occurred sexual intercourse between the couples or there were acts which suggest the possibility of having sexual intercourse between the couples, the law will accept that there was sexual intercourse or consummation of the marriage by the couples. See: Adawi, Hashiyatu Adawi, vol. 11, page 108. The law will legitimate any pregnancy that appears with the wife to the husband irrespective of the number of times the couples had sexual intercourse, provided the delivery took place within the minimum period of gestation which is six lunar months less five days i.e. five months and twenty five days and provided further, that the marriage was validly contracted. In this appeal, even the plaintiff/appellant stated that he got the information that Zara gave birth after her marriage in five months, twenty-eight days. This period is enough to cover the minimum period of gestation and the child must be attributed to the new (2nd) husband.
The admission of overdue pregnancy by Zara can hold no water as it was marred with contradictions (already highlighted). Sharia cannot allow her to blow hot and cold at the same time. Sharia is very much concerned with the dignity of a human person especially where his future will be jeopardized if he is identified to have no father or he is of a doubtful father.
Finally, I find no merit in this appeal and same is dismissed by me. I affirm the decision of the lower court which set aside the trial court’s decision. I too give paternity of the child to Goni Modu the 1st respondent.
I make no order as to costs.
Other Citations: (2006)LCN/2044(CA)
