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.

Learned counsel for the respondent made his submissions on the 1st issue as follows: That the decision of the arbiters dated 5th October, 1999 had been annulled by virtue of constituting the 2nd Panel. This was strengthened by the acts of the parties when they submitted themselves to the jurisdiction of the 2nd Panel. The decision of the 1st Panel was rightly rejected by the lower court as the 1st Panel had not carried out its assignment as expected. Another reason for the rejection of the report by the lower court was that the respondent rejected it and that one of the Hakamani withdrew.

The court would have had no option but to implement the solution of the arbitration if only/it arose as final and acceptable to the parties and that all rules were followed and parties were afforded the opportunities to defend themselves. The position postulated in the Tuhfatul Hakkam at page 43 relied by the appellant was not applicable as the findings of the arbiters were not conclusive and not in accordance with the guiding principles. The case of Fadimatu cited by the appellants counsel was on a different footing. Learned counsel urged us not to rely on both and that we should accept their submission and uphold the decision of the lower court.

I think for a better understanding of this appeal, it is very pertinent for me to consider in a comprehensive manner what the doctrine of Hakamani is all about in Sharia. Hakamun (sing); refers, ordinarily, to an arbiter or arbitrator, referee or umpire. (See. Elias, et al, (1950): Al-Qamus Al-Arabi; Arabic-English), 7th Edition, Cairo, Egypt page 161). Its dual form is Hakamani (nominative) and Hakamaini (accusative). When employed in a legal slang, it refers to two persons appointed by a competent court of law to come-up with a resolution of how to end-up a misunderstanding that has ensued between a husband and his wife.

(a) Source

The appointment of Hakamani in a marriage marred with dispute and disaffection finds place in AI-Qur’an. In surat al-Nisal (4:35) Allah says:

“If you fear a breach between the two (i.e. husband and wife) then appoint two arbitrators, one from his (husband’s) family and one from her (wife’s) family. If they both wish for peace Allah will cause their reconciliation. Indeed Allah is Ever All-Knower, well-acquainted with all things”.

(b) Qualification:

An Arbitrator should be:

i. a Muslim

ii. Male

iii. Free from serfdom

iv. Just and

v. A Jurist.

(c) Conditions

For the two arbitrators to function, the following conditions should be satisfied:

(i) one of them should come from the husband’s family.

(ii) the other should come from the wife’s family.

(iii) where none of the above is available the court should appoint them from the neighborhood of the spouses (who possess same qualifications as in (b) above) (See pages 195 and 196 of Al-mayyarah).

(d) Duties

Both arbitrators should:

i. Invite the spouses to their sessions and hear the side of each.

ii. Try to attain reconciliation between the spouses (sulh).

iii. Offer words of advice/warning to the defaulting spouse or to both if both are guilty of the misunderstanding.

iv. Where there is failure of (iii) above, and the defaulter is the husband, then the spouses should be separated, or

v. Where the defaulter is the wife, she should be made to compensate the husband for her to redeem her freedom from his marriage tie.

Now it is clear from the printed record of appeal that the lower court made the following orders and findings: –

“In the light of this development the court have (sic) adjourned to Monday the 3rd of August, 1998 and ordered both parties to bring along with them their trusted representative one from the husband while the second from the wife’s side so that the court can appoint them as Hakamani (arbitrators) to look into the matter and try to settle the parties accordingly.

The court has set up a panel of arbitrators comprising Tanimu Baba Ahmed for Salamatu the respondent while Bashiru Hong stood in for Abubakar the appellant. The 2 arbitrators met the spouses and submitted their verdict on the 5/10/1998, but the appellant objected to their finding arguing that they were asked to walk out from the venue of the settlement as such they have not heard his own side of story/his grievances.

As a result of this development the court had to order the arbitrators to repeat their exercise making sure that the parties attended the meeting.

Alhaji Bashiru Hong withdrew from the Panel and the court has accepted his withdrawal and the appellant has substituted him with one Alhaji Ibrahim Naibi to take over.

The arbitrators have requested the court to give them more time to enable them do their duties accordingly to which the court did.

Later each of them submitted a separate report to this court and the Court understood that they failed to settle the spouses as expected due to what they term lack of co-operation from the spouses.

According to the effort made by the court in establishing an Arbitration Panel, the court has attempted to allow the parties settle, but that has failed and therefore the court will go into the merit and demerit of the case.”

From the above excerpt, it is clear that the lower court:

(i) appointed Hakamani for the spouses in the person of

(a) Tanimu Baba Ahmed from the respondents side; and

(b) Bashiru Hong from the appellant’s side.

(ii) made a finding that the two arbitrators met the spouses and submitted their verdict on 5/10/1998.

(iii) found that the appellant objected to the arbitrators findings.

(iv) found that the reason for the appellants objection to the report submitted by the Hakamani was because he was asked to walk out from the venue of the settlement as such he was not heard.

(v) ordered, based on (iv) above, the arbitrators to repeat their exercise making sure that parties attended the meeting.

(vi) found out that Alhaji Bashiru Hong, an arbiter from appellants side, withdrew from the Panel. The lower court accepted his withdrawal and

(vii) accepted Alhaji B. Hong’s substitution in person of Alhaji Ibrahim Na’ibi.

(viii) made a finding that “each of them” submitted a separate report to the court,

(ix) made a finding that they (arbitrators) failed to settle the spouses as expected due to lack of cooperation from the spouses,

(x) made its finding that attempts to settle the spouses have failed.

From that material point, the lower court went into the “merit and demerit of the case” in order to come to a solution to the nagging problem, The lower court reviewed the decision of the trial court and found it contrary to Sharia. On the issue, of Khul’ ordered by the trial court, the lower court relying on the authority of the NASS () from Ashalul Madariki, Vol. 11 page 157, stated as follows:

“Thus it is compulsory upon the wife to pay what they have agreed upon with her husband either real property or monetary provided husband did not harm (cruelty) as provided too in book of RISALA.”

The lower court “quashed” the decision of the trial court and reinstated the marriage of the appellant with the respondent and the latter to return to the formers house as soon as possible. The lower court added an order that:

“However, if she so wish sue (sic) him on any relevant issue before any competent court, but such court must clearly indicate her complain and hear them in accordance with the procedure of Shari’a”.

After all the above findings by the lower court I am astonished to see that the lower court was to go into the case and hear it on its merit. My simple questions to the court are:

(1) Is a decision taken by the Hakamani, once adopted by the court (of course which it was bound to do) not a decision on the merit”

(2) Was the lower court not given the report by the Hakamani?

(3) What was the reason for the lower court not to adopt, rely and apply the recommendation of the Hakamani?

Let me start by the report(s) of the Hakamani. For case of reference, I will refer to the first Arbitration Panel which comprised of (a) Tanimu Baba Ahmed and (b) Bashiru Hong, “the 1st Panel,” and; the second Arbitration Panel which comprised of (a) Tanimu Baba Ahmed and (b) Alhaji Ibrahim Na’ibi, as “the 2nd Panel.”

The lower Court stated in respect of the 1st Panel.

“The 2 arbitrators met the spouses and submitted their verdict on the 5/10/1998 …”

The verdict referred to above by the lower court submitted by the 1st Panel, contained on page 19 of the record of appeal, reads as follows:

“A Brief Report in Respect of the Assignment Given to the Under Signed By The Sharia Court of Appeal:

Sequel to the Court order the spouses were invited by us for the purpose of elucidating the counsel of disharmony after about two decades living seemingly happily together as husband and wife. The marriage of which was blessed with 4 off springs.

2. Immediately the discussion began confrontation ensued each party attempting to level allegations against the other which culminated in utterance viz bani sonka-nima bani sonki.
3. Realizing the tense mood the two were called to order forthwith and were asked to leave the venue of the meeting which they did.
4. Findings:

From the brief dialogue which transpired the following facts became apparent:

(i) While the wife insisted that she is fed up of the marriage. When pressed to state reasons she declined on the grounds that she wouldn’t like to dwell in mud slinging thereby destroying the family’s reputation. Hence her avowed decision. Her prayer to the honourable court is to secure divorce nothing more nothing less.

(ii) When counseled against her decision at a family meeting she threatened fleeing the country, should the family insist.

(iii) On the other hand the husband is bent in carrying through with the marriage and he is willing to defend any allegation to be levelled against him and also to support this case with evidence and witnesses, with the consequence of disregarding the reputation aspect which the wife cherishes.

5. Recommendation.

(a) It was discovered that the marriage has broken irretrievably.

6. it is our considered view that the wife’s prayer be granted in view of the fact that experience is rife with cases of wife’s committing suicide having been forced to marry.

In fairness to the husband it is reconsidered that the court grants him the freedom to claim his rights in all ramifications.

Signed

Tanimu Baba Ahmed Alh. Basiru Hong

Arbitrator Arbitrator

5/x/98”

The report of the 2nd Panel, contained on page 20 of the record of appeal reads as follows:

“The Chief Registrar,

Sharia Court of Appeal,

Adamawa State,

Yola.

Arbitration Between Mallam Sulaiman Abubakar Wapanda and Salamatu Sulaiman

In compliance with the court directive, the arbitrators had a couple of sitting and it was discovered that while Malama Salamatu Sulaiman Wapanda insists on pacification so that they can stay as husband and wife.

2. Salamatu when asked what her reasons are, stressed that her love for Sulaiman which naturally was the bedrock of the marriage is no more, when the Arbitrators insisted repeatedly to pacify her. She categorically stated that even if GOD were to spare her life for the next one hundred year she will not change her mind.
3. The Arbitrators therefore could not achieve the desired result of their mission and therefore decided to report back accordingly.

Alahji Ibrahim Na’ibi (Signed)

Jimeta Town. T. B. Ahmed

Councillors Qtrs,

Bye -Pass.

Furfure Road.”

I have also noted on page 21 of the record of Appeal a separate report filed by one of the members of the 2nd Panel i.e. Alhaji Ibrahim Na’ibi. It is interesting to read the contents of this report which states as follows:

“The Khadi,

Shari’a Court of Appeal,

Adamawa State,

Yola.

Report of Arbitration (Sulhu) Between Abubakar Sulaiman Wapanda and His Wife Salamatu Sulaiman Wapanda

I Alhaji Ibrahim Naibi and Alhaji Tanimu Baba Ahmed, as we have been appointed by this Hon. Court as the Arbitrators (Hakamani) between Abubakar Sulaiman Wapanda and his wife Salamatu Sulaiman Wapanda. The court allowed us to verify or to investigate all the problems involved or aroused between the two spouses to which we complied.

In the first place, on the first day we met at the sitting from (parlour) of Alhaji Tanimu B. Ahmed and also we have invited all the 2 spouses they appeared before us. From the beginning of the discussion, Tanimu Baba Ahmed asked Abubakar as why did he rejected their first report that they reported with Alhaji Bashiru Hong the first Hakamani (Arbitrators) of Abubakar Sulaiman, to which Abubakar Sulaiman accepted of rejecting the report, he further added that one Musa Abubakar who is working at the same place with Salamatu is the one who instigated her to leave my house or seek for divorce, for that reasons I will never accept any son of compromise, all what I want is my wife should go back to my wife as normal.

From there we could not get the co-operation of the two spouses in all several sittings we held at the house of the Alhaji Tanimu Baba Ahmed (the arbitrator of Salamatu the wife) because the wife is demanding for divorce while the husband on the other hand insisted that she should go back to his house.., they say as husband and wife. We have tried all our possible best to settle as directed by the Sharia Court of Appeal Yola, as also provided in Qur’an 11 chapter 114, but we couldn’t succeed in doing so.

I Alhaji Ibrahim Na’ibi to the best of my understanding in this matter between Sulaiman and his wife Salamatu, the best thing for them is that Salamatu should go back to her matrimonial house, and I also believed that this is the same position of Alhaji Tanimu Baba, Ahmed including all those who helped us in this matter, but if Alhaji Tanimu Ahmed have something in mind let him say it out.

Finally, the reasons as to why I wrote my report to that of Alhaji Tanimu Baba Ahmed is that because I refused so signed on his report due to the facts that I found or considered that his report contained the refusal of the marriage held by Salamatu, which is contrary to the submission of Sulaiman, because Abubakar gave reasons why he should not divorce Salamatu.

Therefore I am now advising the court that to the based on the grounds, we found that it is better to restore the marriage between Abubakar and Salamatu. May the Almighty lead us to right way and also protect us from the Evil of Satan and Yahudu Ameen.

Signed

Alhaji Ibrahim Nai’bi.”

This last report, it should be noted, was signed by Alhaji Ibrahim Nai’ibi.

It is very clear from the reports of the 1st and the 2nd Panels, that the spouses were adequately heard. And from the discussions had between the Panels and the spouses, it became clear to both parties that love, which is the bedrock of the marriage, was no more there between the spouses. In fact in one of the reports (i.e. the 2nd Panels report, the Arbitrators credited a statement to the wife where she categorically stated that even if GOD were to spare her life for the next one hundred year(s) she will not change her mind. Both Panels, especially the 1st Panel found that the marriage between the spouses had broken down irretrievably, The 1st Panel recommended that the wife’s prayer be granted and to be fair to the husband, the court should grant him the freedom to claim his rights in all ramifications. The 2nd Panel in its last paragraph of the report stated by way of conclusion, that the Arbitrators could not achieve the desired result of their mission and therefore decided to report back accordingly.

Now let me examine the set up of the Panels themselves. The 1st Panel in my view was rightly and competently set-up by the lower court although, initially that ought to be the responsibility of the trial court. But authorities abound that a trial court has failed in its responsibilities, the appeal court, where appropriate, could as well exercise the powers of the trial court. See section 7 of the Sharia Court of Appeal Law, 1960; Bashiru v. Adamu (1997) 10 NWLR (Pt.523) 81. This Panel gave its report to the lower court (as reproduced above from the record).

This was confirmed by the lower court in its judgment where it stated that the 2 arbitrators met the spouses and submitted their verdict on the 5/10/1998. This should have brought to an end the dispute between the appellant and the respondent. But in compounding the matter, the lower court, it appears, jettisoned this Report by the 1st Panel and set-up another Panel on the reason that the appellant objected to the report.

I think what is paramount and what the lower court ought to have realized is that the HAKAMANI appointed by the court were not the agents of any of the parties. Their duties as espoused earlier on were to arrive at an amicable/peaceful resolution of the marriage dispute. Where peaceful resolution is not feasible, they can recommend for any step to be taken by the court in order to end-up the sour relationship between the spouses.

Translation:

Where (the arbitrators) see that for the good and betterment of the spouses they should be re-united then they (recommend) for re-uniting them, but where they see that the good and betterment of the spouses is in separating them, they (recommend) for separation, (this call be done) by payment of a compensation (substitute) by the lady and he separation will be by Khul, (redemption) where the wife is at fault. But where it is the husband who is at fault, then separation should take place (even) without his choice. The majority view of the learned people is that these two Arbitrators, as Allah has named them” Hakamalli” they should decide (between the spouses) without being agents of the spouses. This is the opinion of (imam) Maliki, Shafi’l and Imam Ahmad.

See: Ibn Taymiyya; Majmuatul Fatwaa Ibid; page 226, Al-Mayyarah, page 196, Al-Kafi, Ihkamul Ahkami page 99, in its report, the 1st Panel recommended inter alia:

“5(a) It was discovered that the marriage has broken irretrievably.

6. It is our considered view that the wife’s prayer be granted in view of the fact that experience is rife with cases of wife’s (sic) committing suicide having been forced to marry.

In fairness to the husband it is recommended that the court grant him the freedom to claim his rights in all ramifications.”

The Panel captured the prayer of the respondent as plaintiff before the trial court seeking to secure divorce nothing more nothing less. The Panel (as seen above) recommended for that and went further even to recommend that the appellant be granted ‘freedom’ to claim his rights from the respondent.

This, to my mind, is the only perfect way of resolving the long-standing imbroglio, neigh, and an impasse, between the spouses. The law is well settled with regard to the decision of the Hakamani:

Translation:

Whatever the Hakamani decided is to be executed and no excuse shall be entertained from the spouses.

(See: Almayyarah, Vol. 1 page 195, Ihkamul Ahkant page 100. The decision must be arrived at by both Hakamani not one as the law has stipulated for two. It is further stated:-

Translation:

If an Arbiter (in the matter of dispute between the spouses) will give a decision on a clear matter, his decision cannot be executed in accordance with the consensus of the Muslims.

See Ibn. Taymiyya: Majmuatul Fatawa, Vol. 35, page 226. This must render the last report by Alh. Ibrahim Nai’ibi as null and void as he had no capacity to render a decision by himself alone as an arbiter. In the whole, the decision of the 1st Panel must be implemented by the lower court. See authorities cited above. I resolve issue No. 1 in favour of the appellant.

Issue No.2 is on the order of the lower Court when it ordered the repetition of the exercise of the 1st Arbitration Panel dated 5/10/98. Learned counsel for the appellant submitted that it was wrong of the lower court to have so ordered.

The objection of the respondent against the 1st Panel’s report was not supported by evidence. He submitted further that the respondent did not address the court on any allegation or dissatisfaction with the decision of the Arbitration Panel dated 5/10/98 instead, he substituted his representative only. The 2nd Panel ought not to start the duties of arbitration Panel as the Report of the 1st Panel remained valid and subsisting. The withdrawal of the 1st representative of the respondent after the submission of the report dated 5/10/98 cannot in any manner whatsoever affect the report.

Learned counsel submitted that the lower court had no right to appoint the subsequent arbitration panel setup by the same court which report the court did not set aside. He urges this court to determine this issue in appellant’s favour.

Learned counsel for the respondent submitted that there were no conclusive findings by the 1st Panel and its report was presented but not formally accepted by the court. The respondents Hakam (arbiter) withdrew his services and needed to be replaced as lightly ordered by the lower court. The 1st Panel’s report not having been accepted had no binding force on the court. Further the appellant went ahead and appeared before the 2nd Panel thereby condoning and acquiescing the establishment of the 2nd Panel. Learned counsel argued further that as at when the 2nd Panel was reconstituted, it was akin to an annulment as far as the 1st Panel and its report were concerned. He urged this court to hold that the 1st Panel was non-existent.

Now, it is clear from the record, and as found by the lower court, the verdict of the 1st Panel was submitted on 5/10/98. This was sequel to an earlier order of the lower court made on 4/8/98 that the case was adjourned to Monday 5th October, 1998 for “the verdict of the arbitrators.” (page 16 of the record). The Panel did submit that verdict dutifully. On the 5th of October, 98, the proceedings of court read as fellows:

“Today is Monday 14th Jumadal Akhir 1419 that is 5th October 1998, all panics are present the Hakamani are also present and they submit their report in writing as follows:”

The report was set out by the lower court. Then on the 3rd of November (14th Rajab. 1419) the lower courts record bears as follows:

“The court wants to hear the address of the appellant who is not satisfied with the decision of the Hakamani.”

Then on 12th November (23rd Rajab 1419) the lower court’s record bears as follows:

“Today Alhaji Bashiru Hongs explained that he wants the court to allow him to withdraw his services accordingly and the appellant Sulaiman Wapanda has no objection so the court has accepted Alhaji Bashiru Hong’s withdrawal.”

On Friday 13th November, the lower court sat. Parties were present and the court asked the appellant.

“if he has got a substitute as his Hakamani, and replied he has got one he is Mallam Ibrahim Nai’bi of Nassarawa ward Jimeta a Muslim scholar. While Tanimu Baba Ahmed continuous (sic) to represent the side of the respondent. The court again explained the functions of Hakamani as provided in the Tuhfatal Hakkam. The Hakamani have asked two months and the court has granted the same, but told them that, if they come to some sort of agreement before the expiration of two months they can both come to the court and inform the court so that the court can give a later date. The case is therefore adjourned to 13th January, 1999.”

From the above excerpts, it is clear that the submission of the 1st Panel’s report predated the setting-up of the 2nd Panel. Further, it is not correct as submitted by learned counsel for the respondent that the 1st Panel’s report was never accepted by the lower court. It is my finding that the 1st Panel’s report was formally accepted and acted upon in a manner by the lower court. It is also incorrect as submitted by learned counsel for the respondent that there were no conclusive findings by the 1st Panel. The concluding part of the report especially paragraphs 4, 5 and 6 came up with the findings and recommendations. It was after all these that the appellant fell dissatisfied, connived, unfortunately, with the substituted arbiter appointed by the court from his side to attempt to subvert the good and commendable efforts of the in Panel. Although he had fully participated in the Panel proceedings and he even signed the report, it still remains inexplicable why he decided to behave the way he did. Be that as it may, Alh. Bashiru Hong’s withdrawal after concluding everything which was erroneously accepted by the lower court was ineffective in law. The maxim is that one cannot approbate and reprobate. One cannot make a gift and take it back. The Prophet (PBUH) equates he who eats back his words/gifts, like a dog that eats back it vomit. The Holy Qur’an discourages Muslims from reneging from an undertaking made in a unanimous agreement. It states:

“The true believers are only those who believe in Allah and His Messenger and when they are with him on some common matter they go not away until they have asked his permission.”

I think by the time he applied to withdraw from membership of the 1st panel, Alh. Bashiru Hong, had already became functus officio and he had nothing to withdraw. I could not understand why the lower court obliged him and the respondent a wasted and an undeserved chance. Further, I fail to see the reason why the lower court refused to implement the decision of the 1st panel which it set-up by its own self. Unless there was anything which vitiated the 1st Panel’s.

Translation:

Whether decision they (i.e. the Hakamani) reached should be implemented and the spouses shall have no excuses in what they (Hakamani) did.

(Al-Mayyarah: Vol. I page 195 (Hamish) in another place, the same author state

Translation

Where a just decision is arrived at, there shall be no doubt as to its implementation. (See: Inkamul Akhami; page 33) The position of the Hakamani in matters of marriage resolution is akin to that of a real Judge. Their decision binds the Judge and has to be implemented. There was thus, no reason for the setting up of the 2nd Panel. I have perused the record; it is not true that the respondent was not given a hearing.

The 1st panel recorded in paragraph 2 of its report:

“2. Immediately the discussion began confrontation ensued each party attempting to level allegations against the other which culminated in utterance viz: Bani Sonka Ima Bani Sonki.”

The panel in paragraph 3 of the report stated the reason why the spouses and not the respondent alone, were asked to leave the venue:

“3. Realizing the tense mood the two were called to order forthwith and were asked to leave the venue of the meeting which they did.”

There is, therefore, no iota of truth that the respondent was not given a hearing. The truth is that the respondent did not find the 1st Panel’s report as he had predetermined it to be. Thus, he sought for a cheaper alternative. But should the lower court allow itself to be used as a conduit pipe or rubber stamp? I believe not. I hereby resolve this issue in favour of the appellant.

Issue No.3 is on whether the lower court was right to order the appellant to sue the respondent on any relevant issue. I think in view of my holdings above, this issue appears to be a straight forward one. A court of law is not an advisory body or counsel to litigants. It is an institution which makes definitive pronouncements which by the force of law must be obeyed and executed. For the lower court to render itself into an advisory body is not in conformity with the law which establishes that court and spells out its duties, jurisdiction and responsibilities. The lower court was not a legal practitioner to the appellant. It was wrong to advise the appellant to sue and direct how the matter should be handled by the court which shall entertain the matter. That advice/order was wrongly done. There was no basis for it, it is hereby set aside. This issue is hereby resolved in the appellants favour.

On issue No.4, I think I have treated some aspect of it in issue

No. 1.

Well, the decision of the trial court was purely based on Kiwi (redemption). But the lower court found that the correct procedure for affecting Kiwi was not properly followed by the trial court that is why the lower court “quashed” i.e. set aside the trial courts decision and reinstated the marriage between the spouses. But considering the totality of the lower courts proceedings including the notice and grounds of appeal filed by the respondent as appellant, it is clear that the issue raised by the respondent there was that he was not heard on the issue of Khul before the trial court gave its decision ordering the payment of N100.00 (One Hundred Naira) as the amount for the Khul payable by the appellant to the respondent. This, to my mind, is the mistake that the lower court ought to have corrected. As adumbrated above, under Sharia principles, and I agree with the learned counsel for the appellant in his submission, that the appellant has a right to seek for divorce by way of Khul’ if she becomes apprehensive that she is not in harmony with the husband. The law requires her to redeem herself from the marriage tie by giving up whole or some part or equivalent to the dowry agreed to be paid to her by the husband before their contract was affected. I agree with the respondent’s counsel too, that the respondent, being appellant’s husband had right to be consulted and be heard on the issue of Khul’.

I am not however, in full agreement with the learned counsel in his submission that the issue of Kuhl’ personal to the parties and that it is the acceptance of it that validates the divorce. I find myself in dire need to repeat what I once said in the case of Usman v. Usman (2003) 11 NWLR (Pt. 830) 109 at pages 129-130, thus:-

“From all the above instances, it is clear that dissolution of marriage through the process of Khul’u does not require the Kadi to compel the wife to explain her reasons for so requesting. The Prophet did not inquire into the reasons why the two wives of Sufyan wanted to free themselves from his marriage-tie. The two Caliphs did not require the complainants before them to give explanations. It is purely a matter of contentment. Once the wife is discontented with the marital life in relation to that husband to the extent that it appears to the Judge that harmonious co-existence between the spouses is no more feasible and they shall transgress the bounds of Allah, then dissolution of the marriage by TALAQ simpliciter or through the process of Khul’u is the only answer. There may be cases in which a wife may not like to disclose her reasons for the Khul’u. Khul can, in general, arise under two circumstances:-

a) When both the husband and the wife mutually decide a separation. This happens where there is mutual consent from the spouses to separate. The husband can divorce the wife with no difficulty subject to such terms if any as may be agreed upon between them.

Here again, if it is the wife who wants Khul’u and the husband agrees to dissolve the marriage on certain conditions agreed upon between the spouses, there shall arise no difficulty. The spouses may not even have recourse to a law court.

(b) When it is only the wife who wants to get a release from the marriage-tie. This is a situation where the husband may appear to be unwilling to Khul’u and insists on the subsistence of the marriage-tie inspite of the wife’s resentment to it. This is where difficulties arise and controversies set in. In this situation it is only the wife who is desirous of the termination of the marriage. If the husband refuses to agree to Khul’u or if the spouses cannot agree to terms on which the marriage is to be dissolved, as is the factual situation in the appeal on hand, then the natural questions arising are: can anything at all be done in such a case? Is the wife at all entitled to get a separation and if so, under what circumstances? Can the Kadi dissolve the marriage even though the husband does not agree to it?”

I went on to answer the questions posed. I observed as follows:-

“This establishes the law that a wife cannot dissolve her marriage under Khul’u by herself. She has to get it done through the agreement of the husband or through the judicial process. On the extreme end it will work stupendous injustice on the wife if Khul’u shall be allowed solely in the hands of the husband to exercise such power only within his own discretion and it is not demandable by the wife as a matter of light under Shatia. The cases decided by the Prophet (PBUH) and the Caliphs strongly lead to the view that the decision of such a case does not depend on the sweet will of the husband”.

It has been observed in this appeal that even from the word ‘go’, the parties were not ready for settlement. Paragraph 1 of the 1st Panels report indicated that confrontations and levy of accusations and counter accusations ensued against each other by the spouses. Secondly, from the findings of the 1st Panel, Paragraph 4(ii) the appellant when counseled against her decision at a family meeting, she threatened fleeing the country, should the family insist. The 1st Panel advised that practices abound where wives commit suicide where forced to continue with marriage against their will. Permit me My Lords, to again quote from my dictum in Usman v. Usman (supra):

“Our second point is the role of the Kadi i.e. whether the Kadi is bound to dissolve the marriage if it is established that a harmonious married life is not possible. The wife may not be able to live a happy life with the husband and the husband may refuse to divorce her. Then, does Islam forces her to live a miserable life in perpetuity and provides no relief for her? Can it be theorized that the unhappiness on the wife is no concern to the Sharia and it would rather let the wife adopt an undesirable course of conduct than to dissolve the marriage? It would certainly be unreasonable to think that the Sharia prefers that a marriage shall not be dissolved even when the wife cannot live within the bounds of Allah and may, transgress the bounds enjoined on a wife and when the very ends of marriage shall be frustrated and brought to ridicule. The Qur’anic exhortations to keep a wife with kindness require that if mutual love cannot work, husband should release the wife from the bond of marriage. If inspite of the wife’s unhappiness, the husband refuses to give her a release he shall certainly be guilty of non-compliance with the Qur’anic injunctions. The Kadi shall give a relief to the wife by ordering the husband to divorce the wife and on his failure or refusal to do so the Kadi shall become competent to pronounce divorce of the wife on behalf of the husband. See AL-KASANI (1327 AH) Badal al-Sana’I Vol. II page 323, Cairo. This was what the Prophet (PBUH) and the two Caliphs referred to supra, exactly did. This is what the trial court did but the appellant in this case refused to collect the consideration offered by the wife. Agreed that some husbands may be at pleasure to put to hardship the wife who indicates her resentment in keeping the marital tie. It may also be vice-versa. What the law stipulates as general rules in this situation are two (a) that the law cannot help the wrong-doer or a transgressor and (b) that the party shall be helped by law which is less at fault of the two. Thus, it will be ridiculous, where it is apparent to the court that harmonious marital life is not practicable between the spouses, example of where a wife is ready to ‘forego paradise (ALJANNA) “than to keep on with the marital tie, and the Judge (Kadi) shall appear to be a toothless bulldog who can bark but not bite then his determination of the matter would become meaningless. In Bilqis Fatima v. Najmul Ikran (1959) PLD page 566 at 594, a Division Bench of the High Court of West Pakistan, Lahore, after discussing the matter of Khul’u extensively, came to the decision that the wife was entitled to dissolution of marriage on restoration of the benefit she had received from the husband if the Judge apprehends that the parties will not observe the limits of God.”

In the appeal on hand, there are threats from the appellant to flee the country if compelled to continue her stay with the respondent. Should the court encourage her to flee the country or commit suicide on an issue that the court has power to resolve? My answer is in the negative.

It is rather an unfortunate situation that a marriage that has lasted for over two decades and blessed with four children, that it will have to end in a chaotic manner. Although the appellant has refused to divulge the reasons why she wanted the marriage determined through Khul’. Well she is entitled to keep her reasons undisclosed. See the case of Usman v. Usman (supra). It must be restated that Islamic Law is a reasonable and rational law. It is organic and developmental. It grows with the society. It is humane and comprehensive. It takes care of all and sundry. It outlaws high handedness and oppression. It establishes justice and peace in society. It sets out rules for a harmonious co-existence between people and especially between spouses such that one does not oppress the other.

In the final result, I find merit in this appeal and same is hereby allowed. I set aside the decision of the lower court. I endorse that part of the decision of the trial court that the parties should get separated as husband and wife through the process of Khul’. This matter should be sent to another Upper Area Court to determine the marriage between the spouses through Khul’ as may be agreed upon by the spouses or as the Court may use its judicial powers to fix the amount of Khul reasonably without causing undue harm to any of the parties.

I make no order as to costs.

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Other Citations: (2006)LCN/2041(CA)