ABDULLAHI v. KASUWA

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MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Sharia Court of Appeal, Katsina State, holden at Katsina, hereinafter called the Lower Court, delivered on the 3rd day of September, 2015 and wherein the said Lower Court affirmed the concurrent judgments of the Upper Sharia Court No. 1, Katsina hereinafter called the intermediate Appellate Court and the Sharia Court No.1, Katsina, hereinafter called the trial Sharia Court.
The facts which led to this appeal emanated from the trial Sharia Court, whereat the respondent herein as plaintiff sued the appellant who was then the defendant. The claims or complaints made/laid before that Court by the respondent was for confirmation by the trial Sharia Court of the cumulative triple divorce pronounced and or handed down by her husband, the appellant and breast feeding/suckling allowance.
The respondent in her own words puts it thus:
“He gave me the first divorce on 28th March, 2014 and also when I was at my parent’s house without returned back, he then re-send to me a text message via GSM phone that if I reached Saturday 14th June 2014 without returned back to his house he also divorced me duplicate (2). In addition, with the first divorce made them to be three by then I was pregnant up to the time I delivered my waiting period was completed for that I need court to confirm these divorce for me.
Also, the daughter I delivered, her name is Aisha and I also need this Court to order him to be paying me breast feeding. We married with him since 17 August, 2013. The daughter, she is five months old now.”
(See page 1 of the record of appeal.)
The appellant in his denial of the claims made by the respondent, answered thus:
It is true I divorced her on 28th March, 2014, a first single divorce but I did not divorce her any more since from the first divorce.
On the issue of duplicate divorce of 14th June 2014, it is not true. I did not divorce her. Also on the issue of our daughter, Aisha breast feeding allowance (fees) I do not accept and
agree with that.”
(See pages 1 & 2 of the record of appeal.)
Upon this denial by the appellant and subsequent assertion that he had recalled/rescinded the divorce and even resumed conjugal relationship which the respondent vehemently denied; the trial Sharia Court requested that the respondent should produce witnesses with regard to the text message that was allegedly sent on the 12th day of June, 2014.
On the next adjournment date, the respondent produced her mother’s cell phone which contained the said text message that was sent on the 12th day of June, 2014 from appellant’s cell phone – 07062903602, at 11.48a.m. to the effect that if the respondent failed to return back to appellant’s home on or by the 14th day of June, 2014, she would have been doubly divorced and thereby triply divorced. Initially, the cell phone was handed over to the appellant who read the text message. He agreed that it was sent through or from his cell phone number. However, he denied that the text message was sent by him. Again, when asked by the trial Sharia Court, the appellant agreed to take an oath that he was not the author of the text message in question. However, he gave an hint that the text message could have been sent by a friend of his without his permission. At a point, he stated that he could accept that he was the one who sent the conditionally worded text message. He added that he withdrew it before the stated deadline of Saturday, 14th June, 2014. Eventually, the appellant agreed that he was the author of the said text message, but, insisted that he withdrew it before the occurrence of the stated deadline.
In its judgment, the trial Sharia Court found and held thus:
???…confirmed the separation of marriage between Halima and Abubakar with two (2) divorce he did to her on 14th June, 2014 and they are added to complete three (3) divorce. Her waiting period began from 14/06/2014 and to her delivery, Also, order Abubakar to be paying Halima N4,000.00 monthly for breast feeding since from the time she delivered …”

The appellant appealed to the intermediate Appellate Court on three grounds of appeal. He prayed that the judgment of the trial Sharia Court should be reversed/set aside. The intermediate Appellate Court heard/listened to the parties before it, reviewed the record of proceedings placed before it and at the end of the exercise, it dismissed the appeal. It stated thus:
“… we affirm the judgment given by the Lower Court, Sharia Court 1, the Court

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that dissolve the marriage between Halima Jamilu and her husband Abubakar Abdullahi with two divorce he did on 14-06-2014 and the other one making the, also the Court affirm the decision of the Lower Court that he should be giving Halima Jamilu N4,000.00 every month for breast feeding from the day she put to bed like how the previous Alkali made judgment … ”

Again, the appellant appealed to the Lower Court on five grounds of appeal. The Lower Court listened attentively to the contentions and responses of both the appellant and the respondent. At a point and in the course of conduct of hearing of the appeal before the Lower Court, it threw a question at the appellant. The question and his answer are reproduced below:
“Q.- In the record of proceedings you mentioned that you were the one who wrote the text message?
A.- Yes, it is true. I told the Court that I was the one who wrote the text message.”
The Lower Court after due perusal of the record of proceedings, observed that what the parties said before it, “was just a repetition of what they said at the Lower Courts.” Eventually, at the end of its deliberation thereon and as amplified above, it went ahead and dismissed the appeal. It also affirmed the judgments rendered by the intermediate Appellate Court and the Trial Sharia Court.
It is instructively significant to note that the Lower Court supported its decision with relevant/requisite authorities on the points in contention between the parties. Such points as the refusal or inability of the appellant to swear after his evasive denial when he was confronted with the indicting text message which conveyed the divorce message. Such authorities includes the one in Sunan Ibn Majah, Kitab At-talaaq on the principle which states thus:
“Under Islamic law, if a woman claim that she is divorced and the husband denies it. And she presented only one witness, the husband will be asked to swear in order to rebut the evidence she produced. If he refused to swear, it will be considered that she gets another additional evidence. Then he claim will be confirmed and the divorce is confirmed.”
(See page 43 of the record of appeal.)
Again, the Lower Court invoked the Islamic law principle to the effect that admission is to be preferred to other forms of evidence. Regarding the assertion by the appellant that he withdrew the conditional double divorce before the stated date, the Lower Court referred to Minhai Muslim at page 389 where the renown jurist consult, “explained about divorce which is related to the happening of something.” The Lower Court then found the appellant’s purported withdrawal of the text message after it has been read/communicated to the respondent, “is of no importance because it came after what the divorce was attached to has already happened.”
Now, with regard to the argument advanced by the appellant before the Lower Court, that the ominous text message was not sent with the intention of divorce, rather, that it was sent or made to scare the respondent, so that she will panic and rush back to the appellant’s home, as it was the case when the same tactics was previously used and it worked/paid off. Hence the contention by the appellant, that “innamal ‘amaalu bi niyyah, actions are judged or to be judged by their intentions. On this score, the Lower Court drew attention to the hadiths in the book of Abu Dawud, Tirmizziyyu and Ibn Majah coupled with the narration by Abdullahi Ibn ‘Abbas in the book of Tafseer by Ibn Katheer, on the point and or principle that certain events such as an-nikkah, marriage, at-talaaq, divorce and ar-raj’ah, recalling a wife who has been divorced before the time has fully elapsed when the divorce must of necessity take place. Put differently, continuance of the marriage; would be enforced regardless of intention once it has been pronounced/uttered; be it out of anger or even as a joke.
Thereafter, the Lower Court opined and stated thus:
“…we are satisfied that what the Lower Courts did was correct. They did not go contrary to the provisions of Islamic sharia. We therefore hereby confirm the decision of the Upper Sharia Court 1, Katsina which confirmed the decision of Sharia Court, 1 Kastina which confirmed the two divorce which the appellant sent to the respondent through her mother’s phone. This is because what he attached the divorce to has already happened before he withdrew the statement.”
(See pages 46 – 47 of the record of appeal.)
Again, the Lower Court supported its standpoint with reference to the Al-Fiqh Al-Islami Wa Adilatuhu Vol. 9 Page 421 and quoted therefrom. Furthermore, reference was

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made by the Lower Court to Tafseer Alqurtubby in his commentary on Q. 2: 229.

Finally, the Lower Court continued and held thus:
“…we also confirm the decision of the Lower Courts where they decided that the appellant should pay the sum of N4,000.00 monthly for breast feeding starting from the time she gave birth relying upon the provision of verse 23 Chapter of Al-Baqarah.”
(See page 47 of the record of appeal.)
Again, being dissatisfied with the decision of the Lower Court, the appellant appealed to this Court. His notice of appeal contained three grounds of appeal. The said grounds of appeal without their particulars are reproduced below:
“GROUND ONE
The learned Khadis of the Sharia Court of Appeal of Kastina State erred in law when in their judgment ignored and refused to consider the teaching of Qur’an and Sunnah and did the judgment based on their personal interest.”
“GROUND TWO
The learned Khadis of the Sharia Court of Appeal of Katsina State erred in law for added some information that was not treated and used during the Court ruling of our case in the Sharia Court of Appeal of Kastina State in the copy of proceedings and the copy of judgment of the Sharia Court of Appeal of Kastina State. ”
GROUND THREE
The Sharia Court of Appeal misdirected itself for affirming the decision of the Lower Trial Court while no principle of Izar has been applied on the part of the appellant by the said Lower Trial Court before passing its judgment.”
Appellant’s brief of argument was filed on the 28th day of April, 2016. It was prepared by Abubakar Abdullahi Esq. The said brief if it can be called a brief of argument, is a graphic demonstration, vivid portrayal of all what a brief of argument should not be. Indeed, it is a perfect example of how not to write a brief of argument. Everything about the said brief is shoddy and left much to be desired. It was inelegantly drafted. Nevertheless, inadvertence or sin of learned counsel will not be visited on the appellant.
According to the learned appellant’s counsel, “three different issues have to be considered.” They are:
“1. Intention:– Was the appellant intended to divorce the respondent? Or was the text message intentionally wrote to the respondent to make her fearful. (sic)
2. Condition:- Was the appellant wrote the text in extreme anger or in his normal sense…(sic)
3. Time:- Was the condition withdrawn before the effective date (14th June, 2014) …”
On the 24th day of January, 2017 when the appeal came up for hearing before us, both the learned counsel for the appellant and the respondent were absent, though they were duly served with hearing notices against the Court’s sitting on that day. Howbeit, the appellant was present and his prayer that the appeal be heard was granted, since we were satisfied with the proof of service placed before us in that regard. We thereby allowed the appellant to argue his appeal. This he did and his brief of argument was deemed as having been adopted and the appeal duly argued. The respondent did not file respondent’s brief of argument. Nevertheless, the appeal was deemed duly heard/argued in the overwhelming interest of justice.
I have diligently and dutifully studied the record of appeal placed before us in respect of this matter. I must confess that I cannot find any gainful point that can be canvassed in favour of the appellant. Indeed, I find no iota of substance therein. The reasoning, authorities relied upon by the Lower Court and its conclusion thereon, more than adequately covered all the requisite points thrown up for consideration and deliberation in this appeal. Thus, in the given circumstances and peculiar facts of the instant appeal matter, I find no vestige of merit in this appeal. It is accordingly dismissed. The judgment of the Lower Courts are hereby affirmed. No order is made with regard to costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the opportunity of reading in draft the just delivered lead judgment of my learned brother, Massoud Abdulrahman Oredola, JCA who painstakingly dealt with the issues raised in the appeal and properly determined same in accordance with the laid down Islamic principles and law.
I am in full agreement with the reasoning and conclusion reached in the lead judgment with nothing different in addition thereof.
The appeal is therefore dismissed, while the judgment of the Court below is affirmed.
I make no order as to costs.
Appearances